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HomeMy WebLinkAbout92-643Byron H. LeCates, Esquire Stock and Leader 35 South Duke Street P.Q. Box 5167 York, PA 17405 -5167 Dear Mr. LeCates: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 12, 1992 92 -643 Re: Conflict, Public Official /Employee, School Director, Immediate Family, Spouse, Contracting. This responds to your letters of September 29, 1992, and October 9, 1992, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon prospective contracting between a school district and the spouse of a school board member. Facts: As Solicitor for the Red Lion Area School District, you request an advisory from the State Ethics Commission on behalf of Dr. Charles H. Hartman, a Member of the Red Lion Area School Board. The Red Lion Area School District intends to advertise publicly for bids for the production of a School District newsletter to include layout, preparation and-printing. The successful bid will be in excess of $500: You ask whether Dr. Hartman's spouse may bid on the project, and if determined to be the lowest responsible bidder, be awarded thel cohtract. You state that Dr. Hartman's spouse would be bidding as a sole proprietor and not on behalf of a company. You 'further inquire as to-under what circumstances, if any, the School Board can award such a to Dr. Hartman's spouse, assuming the spouse is determined to be the lowest responsible b1 der. Discussion: As a School Director for the Red Lion Area School District, Dr. Charles H. Hartman is a public official as :that term is defined -under 'the Ethics Law, and hence he is subgeet: tlie provisions of=lthat law. Byron H. LeCates, Esquire November 12, 1992 page 2 Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes 'e conflict '. , of interest. The following terms are defined in the Ethics Law as follows: Section 2. Definitions. "Conflict or conflict of interest." Use by a public official or public employee of the Authority-of his office or employment or any confidential information received through his holding public office or employment fofthe private pecuniary benefit of himself, a= inember of his- immediate family or a busines -"w ith which he or a member of his immediate family is associated. "Conflict" or "conflict of interest' does not include an action ^ having a de "minimis "economic impact or which affects to the sate 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 pudic employee, a- member of his family or a business -with which he or a member 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 particular public office or position of public employment. "Immediate family." A parent, spouse, child, brother nor 'sister. "Contract." An agreement or arrangement for the 'acquisition, fuse or disposal the Commonwealth' or a political subdivision 'of co'risniting =or other services or of supplies, materials~; equipment, land or other ' or real -property 1 "Contract•'" shaj i not-=mean an a greement: "oi - arrangement =betwe n the Staeo' or politieai 'sibd vilion as 'One ` party' ana' a ptrbl:c official" °' or public employee as the Byron H. LeCates, Esquire November 12, 1992 Page 3 other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. Section 3(f) of the Ethics Law provides: 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 responsibility 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 the making of the contract or subcontract. Parenthetically, where contracting is otherwise allowed or where there appears to be no expressed prohibitions to such contracting, the above particular provision of law would require that an open and public process must be used in all situations Byron H. LeCates, Esquire November 12, 1992 Page 4 where a public official /employee is, otherwise appropriately contracting with his own governmental body in an amount of $500.00 or more. This open and public process would require: (1) prior public notice of the employment or contracting possibility; (2) sufficient time for a reasonable and prudent competitor /applicant to be able to prepare and present an application or proposal; (3) public disclosure of all applications or proposals considered and; public disclosure of the contract awarded and •offered and accepted. Section 3(f) of the Ethics Law also requires that the public official /employee- may not have any supervisory or overall responsibility as to the implementation or administration of the contract. Section 3 of the Ethics Law provides as follows: .;Section 3. Restricted activities. (j) Where voting conflicts are not otherwise addressed by the .Constitution of 'Pennsylvania or.by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee, who in the discharge of his official duties, would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political Byron H. LeCates, Esquire November 12, 1992 Page 5 subdivision, where one member has abstained from voting as a result of a conflict of interest, and the remaining two members of -the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. If a conflict exists, Section 3(j) requires the public official /employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor. In applying the above provisions of the Ethics Law to the circumstances which you have submitted, pursuant to Section 3(a) of the Ethics Law, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Under the facts which you have submitted, it is clear that Dr. Hartman would have a conflict of interest as to the matter of the production of the school district newsletter where his spouse would be submitting a bid for the project. In each instance of a conflict of interest, Dr-. Hartman as a public official would be required to abstain from any participation of any nature whatsoever and to fully satisfy the disclosure requirements of Section 3(j) as set forth above. The required abstention would include, but not be limited to, abstention from any consideration of the specifications for proposals, consideration of the proposals themselves, and /or voting on the It is further noted that as to Section 3(a), the authority of office may not be used to effectuate a detriment to competitors. Pepper, Opinion No. 87 -008. If Dr. Hartman's spouse is awarded the contract, such business could not be performed using governmental facilities or personnel. In particular, the Red Lion Area School District's telephone, postage, staff, equipment, research materials, personnel or any other printed /drafted material could not be used as a means, in whole or part, to carry out private business activities. As to Section 3(f) of the Ethics Law quoted above, this provision of Taw has strict requirements whenever a- public official /employee, his spouse or child, or any business with'which the public official /employee or his spouse or child is associated, would contract with his governmental body. The term "governmental body with which a public official or Byron H. LeCates, Esquire November 12, 1992 Page 6 public employee is or has been associated" is defined as follows: Section 2. Definitions "Governmental body." Any- department, authority, commission, committee, council, board, bureau, division, service, office, 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 Dr. Hartman is associated would include the Red Lion Area School District. Accordingly, under Section 3(f) of the Ethics Law, any contract that Dr. Hartman's spouse would negotiate with the governmental body would have to awarded through an open and public process including prior public notice and subsequent public disclosure if the contract is $500.00 or more as per the requirements of Section 3(f). In addition, Section 3(f) also restricts the award of subcontracts. Thus, if the Red Lion Area School District would enter into a contract with a given individual or entity who in turn seeks to enter into a subcontract with Dr: Hartman's spouse, such contracting would also be subject to the requirements of Section 3(f) of the Ethics Law noted above. Finally, if Dr. Hartman's spouse enters into such a contract or subcontract after full compliance with the restrictions of Section 3(f), Dr. Hartman would be prohibited from the implementation or administration of that contract in the capacity as public official /employee. Therefore, in order for contracting to be allowed under the Ethics Law, strict - compliance with the provisions of Section 3(f) 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, Turning to your second inquiry, you ask under what circumstances, if any, the School Board may award such a contract to Dr. Hartman's spouse, assuming she is determined to be the lowest responsible bidder. You are advised that Sections 3(a) and 3(f) of the Ethics Law restrict the conduct of individuals rather than the conduct of the governmental body itself. However, it is noted that any contract or subcontract which violates Section 3(f) of the Ethics Law is voidable by a . court of competent jurisdiction where suit is - commenced within 90 days of the making of the contract or sub-contract. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other Byron H. LeCates, Esquire November 12, 1992 Page 7 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 the School Code. Conclusion: As a School Director for the Red Lion Area School District, Dr. Charles H. Hartman is a public official subject to the provisions of the Ethics Law. Although Section 3(a) of the Ethics Law would not preclude Dr. Hartman's spouse from submitting a bid or contracting with the Red Lion Area School District, Dr. Hartman could not use the authority of office or confidential information to advance the opportunity for such business for his spouse and such business activity may not be conducted using governmental facilities or personnel. The restrictions of Section 3(f) as set forth above must be observed. 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. Sincerely, incent 4. Dopko Chief Counsel )