Loading...
HomeMy WebLinkAbout04-599-CL ClarkPaul D. Clark, CPE Secretary P & J Consulting Inc. P.O. Box 656 Hershey, PA 17033 -0656 Dear Mr. Clark: ADVICE OF COUNSEL December 21, 2004 04 -599 -C L Re: Conflict; Public Official; Township; Supervisor; Former School Director; Member; Municipal Authority; Planning Commission; Private Business; Business Relationship; Township Engineer; Contract /Subcontract With Engineering Firms; Clarification; Advice of Counsel, 04 -599. This responds to your letter of November 17, 2004, by which you requested clarification of Clark, Advice of Counsel, 04 -599. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., presents any prohibition or restrictions upon a public official serving in multiple positions, including the position of township supervisor, with regard to entering into contracts /subcontracts with engineering firms throughout Central Pennsylvania through a private business formed by the public official and his daughter to perform engineering work on private business projects within the county in which the township is located or within the township itself. Facts: You serve in multiple capacities as a Derry Township Supervisor, Derry Township Municipal Authority Board Member, Derry Township General Authority Board Member, Dauphin County Industrial Development Authority Board Member, Dauphin County Planning Commission Member, and Tri- County Regional Planning Commission Member. You initially requested an advisory from the State Ethics Commission by letter dated October 6, 2004. On November 3, 2004, you spoke by telephone with Commission staff and provided additional facts pertinent to your request. You specifically stated that the "S" Corporation referenced in your request letter (which had been developed by you and your daughter) intended to contract /subcontract with engineering firms on business projects outside of Dauphin County and Derry Township. On November 5, 2004, Clark, Advice 04 -599 was issued based upon that stated intention. Clark, Advice 04 -599 is incorporated herein by reference. Clark, 04- 599 -CL December 21, 2004 Page 2 In your November 17, 2004, request for clarification, you state that although you do not presently intend to solicit business within Dauphin County and Derry Township, you wish to keep your options open. Therefore, you seek clarification as to whether the same restrictions of the Ethics Act set forth in Clark, Advice 04 -599 would apply as to the "S" Corporation entering into contracts /subcontracts with engineering firms throughout Central Pennsylvania to perform work on projects within Dauphin County and Derry Township. Discussion: In that Clark, Advice of Counsel, 04 -599 is incorporated herein by reference, the quotations, citations and commentary as to the Ethics Act set forth within that Advice will not be repeated here. In response to your request for clarification, you are advised that the prohibitions, restrictions and requirements of the Ethics Act as set forth in Clark, Advice of Counsel, 04 -599 would apply regardless of the location of any private business project involving you /the "S" Corporation. For purposes of applying the Ethics Act to your inquiry, it would make no difference whether any particular private business project that you or the "S" Corporation would be involved in would be located inside or outside of Dauphin County or Derry Township. Assuming: (1) that there would be no improper influence in contravention of Section 1103(b) or Section 1103(c) of the Ethics Act; and (2) that you would not use the authority of your public office(s) or confidential information received by being a public official to further private business endeavors in contravention of Section 1103(a) of the Ethics Act, the Ethics Act would not prohibit you /your "S" Corporation from contracting /subcontracting with engineering firms on projects within Dauphin County or Derry Township because such contracting /subcontracting would presumably occur strictly in a private capacity. Finally, you are cautioned that Clark, Advice of Counsel, 04 -599 and this clarifying Advice have not addressed projects involving a governmental body on which you serve. Any projects involving a governmental body on which you serve would necessitate further advice from the State Ethics Commission regarding additional restrictions of the Ethics Act. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, 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 Act. Specifically not addressed herein is the applicability of the respective municipal code(s). Conclusion: The prohibitions, restrictions and requirements of the Ethics Act as set forth in Clark, Advice of Counsel, 04 -599 would apply regardless of the location of any private business project involving you /the "S" Corporation developed by you and your daughter. For purposes of applying the Ethics Act to your inquiry, it would make no difference whether any particular private business project that you or the "S" Corporation would be involved in would be located inside or outside of Dauphin County or Derry Township. Assuming: (1) that there would be no improper influence in contravention of Section 1103(b) or Section 1103(c) of the Ethics Act; and (2) that you would not use the authority of your public office(s) or confidential information received by being a public official to further private business endeavors in contravention of Section 1103(a) of the Ethics Act, the Ethics Act would not prohibit you /your "S" Corporation Clark, 04- 599 -CL December 21, 2004 Page 3 from contracting /subcontracting with engineering firms on projects within Dauphin County or Derry Township because such contracting /subcontracting would presumably occur strictly in a private capacity. Any projects involving a governmental body on which you serve would necessitate further advice from the State Ethics Commission regarding additional restrictions of the Ethics Act. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), an 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, provided the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717 - 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Vincent J. Dopko Chief Counsel