HomeMy WebLinkAbout92-636Mr. Leslie R. Dulaney 92 -636
R.D. 1, Box 177
Aleppo, PA 15310
Re: Conflict, Public Official /Employee, Township Auditor,
Contracting, Real Estate, Sale to Township.
Dear Mr. Dulaney:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
October 20, 1992
This responds to your letter of September 8, 1992 in which you
requested advice from the State Ethics Commission.
Issue: Whether a township auditor may, under the Public Official
and Employee Ethics Law, sell a piece of real estate to the
township.
Facts: As a Township Auditor, you wish to sell to the Township a
piece of real estate. You state that the Township is presently
renting the real estate to store machinery and other items.
However, the Township would like to purchase the real estate and as
an Auditor and taxpayer, you state your belief that yon could sell
it to the Township. You request an advisory from the State Ethics
Commission in this regard.
li
Discussion: As a Township Auditor, you are a "publ4epfficial" as
that term is defined in the Ethics Law and hence you' a)re subject to
the provisions of the Ethics Law. 65 p.. S . §402; 5'1- Via,. Code Si .1.
Section .3 (a) of the Ethics Law provides`•:
Section 3. Restricted Activities.
No public official or public
employee shall 'engage in conduct that
constitutes a conflict of interest
The following terms ire defined under the Ethics Law:
Section' . Defini.ti-ons.
Mr. Leslie 11. pulaney
October 20, 1992
Page 2
"Conflict or conflict of interest." Use
by a public official or public employee �f the
authority of his office or.employment or any
confidential infOrmation received through his
holding public office or employment for the
private pecuniary benefit of himself, a member
of his immediate family or a business .with
which he or a member of his immediate family
is associated. "Conflict" or "conflict of
int@re@t" does not include an action having a
de minimis economic impact or which affects to
the same degree a class consisting of the
general public or a subclass consisting of an
industry, occupation or other group which
includes the public official or public
emploYes, a member of his immediate family or
a business with which he or a member of his
immediate family is associated.
"AuthOrity of office or employment." the
actual power provided by law, the exercise of
which is necessary to the performance of
duties and, responsibilities unique to a
Par:tiquilar. Public office or position of public
WaPioraent.
"COntract." An agreement oi arrangement
for the acquisition, use or disposal by the
ComMQnWealth or a political subdivision of
consulting or other services Q: supplies,
materials, equipment, land ar other personal
or real property. "Contract" ehaIl not mean
an agreement or arrangement between the State
or political slabdivisiou as one Warty and a
Public 0 or publi.c mglayee as the
Other party, concerning his expense, •
rei:Mbursement, salary, wage, rettremiamt or
other benefit, tenure or other matters in
consideration of his current pill:rile employment
wIth the Commonwealth or a political
•
In addition, - 0_44ions, 1(b) and 3(a) at tile Ethics Law provider
in Part: tha:t no of gr_... to a. putulli, affic.iallemployedeo
anyt., 'ling, of monetary- value: and -no pcxx1.12m off.iicimt/employew shag
so3lir-Lt or accept any thing ctf monetary - valuer based upon t ther•
understanding tha:t, the, vote, official action, or judgement of the:
p official/employee would be inflbenced• thereby. Reference is
made, to. these provisions of the law- not to imply that there! has
been op will be. any. transgression thereof but merely to provide a
Mr. Leslie R. Dulaney
October 20, 1992
Page 3
complete response to the question presented.
Finally, contracting restrictions as to public officials/
employees are provided in Section 3(f) of the Ethics. Law as
follows:
Section 3. Restricted activities.
(f) No public official or public
employee or his spouse or child or any
business in which the person or his spouse or
child is associated shall enter into any
contract valued at $500 or more with the
governmental body with which the public
official or public employee is associated or
any subcontract valued at $500 or more with
any person who has been awarded a contract
with the governmental body with which the
public official or public employee is
associated, unless the contract has been
awarded'through an open and public , process,
including prior public notice and subsequent
public disclosure of all proposals considered
and contracts awarded. In such a case, the
public official or public employee shall not
have any supervisory or overall responsibilitx
for the implementation or administration of
the contract. Any contract or subcontract
made in violation of this subsection shall be
voidable by a court of competent jurisdiction
if the suit is commenced within 90 days of
making of the contract or subcontract.
In applying the above provisions of the Ethics_Law to the
instant matter, we note that Section 3(a) of the Ethics Law does
not prohibit public officials /employees from outside business
activities; however, the public official /employee may not use the
authority of office for the advancement of his own personal
financial gain. Thus, although you would not be prohibited under
Section 3(a) of the Ethics Law from selling a piece of real estate
to the Township, you could not use the,authority of your position
as Township Auditor with regard to this transaction.
As to Section 3(f) of the Ethics Law quoted above, this
provision of law has strict requirements whenever a public
official /employee would contract with his governmental body.
The term governmental body with which a public official or
public employee is or has been associated" is defined as follows:
Mr. Leslie R. Dulaney
'October 20, 1
,Page 4
Section 2. Definitjions
"Governmental body." Any department,
authority, commission, cq rittee council,
board, 1pureau, division, sprvice, aFfBice,•
officer , administration, legislative body, or
,other ,establishment in the Executive,
Legislative ,or Judicial ;Branch of a State, a
nation, or a political subdivision thereof or
an agency ,performing a governmental function.
Under the above quoted definition,, it is clear that the
,governmental body with which you are associated would include the
Township. Accordingly, under Section 3;(f) fof the Ethics .l.am, any
contract' that you .would negotiate with the Townshi would ' to
be awarded through an open and public process including prior
public notice and subseguent public disclosure if the contract is
$500.00 ox r ,as per the requirements of Section 3(f). Finally,
if you and the Township enter into such a contract with full
compliance witgi the restrictions of Section 3(f), you would be
prohibited fry the uap.ementation or administration of that
contract in ire capacity' as► public' official /employee, Therefore,
in'order for contracting tp be allowed under the Ethics Law, strict
compliance frith the ' provisions of Section 3) of the Ethics Law as
outlined above must be followed Unless the restrictions of
Section 3(f) of the Ethics Law are complied with, such contracting
would be prohibited.
Lastly, the propriety of the proposed conduct has only been
addressed' under the 'Ethics Law; the applicability of any other
statute; cgde, Ordinance, regulation or other code of conduct other
than'`the Ethics Act has not been considered in that they do not
involve an interpretation of the Ethics Law.._ Specifically not
addressed herein is the applicability of either the first Class
Township Code or. the Second C Township Code. It is recommended
that you seek the advice of legal counsel as to any restrictions
placed 'upon you by either of the aforesaid Codes with regard to
your proposed sale of real estate to the Township.
Cc tcluSion,: As a Township Auditor, you are public official subject
to .thee` provisions of the 'Ethics Law. Although Section 3(a) of the
Ethics Law would not prohibit you from selling a piece of real
estate to' thg` Township, ou, could not use the authority of office
to advance such a coi�tra61 .
Under Section 3(f). of the Ethios Law any contract or sub,
contract between you and your governmental body must be awarded
through an open and public: process,, if valued at $500.0 or more,
with prior public notice, and subsequent public disclosure. In
additioh, if a contract is awarded, you may not have any
Mr. Leslie R. Dulaney
October 20, 1992
Page 5
supervisory or overall responsibility for the implementation or
administration of the contract.
Lastly,, the propriety of the proposed conduct has only been
addressed under the Ethics Law.
Pursuant to Section 7(11), this Advice is a complete defense
in any enforcement proceeding initiated by the Commission, and
evidence of good faith conduct in any other civil or criminal
proceeding, providing the requestor has disclosed truthfully all
the material facts and committed the acts complained of in reliance
on the Advice given.
such.
This letter is a public record and will be made available as
Finally, if you disagree with this Advice or if you have any
reason to challenge same, you may request that the full Commission
review this.Advice. A personal appearance before the Commission
will be scheduled and a formal Opinion from the Commission will be
issued. Any such appeal must be in writing and must be received at
the Commission within 15 days of the date of this Advice pursuant
to 51 Pa. Code 52.12.
ncerely,
J\
Vincent . Dopko
Chief Counsel