HomeMy WebLinkAbout09-504 LogueAnthony A. Logue, Esquire
One Logue Plaza
2622 Parade Street
Erie, PA 16504 -2810
ADVICE OF COUNSEL
January 23, 2009
09 -504
Dear Mr. Logue:
This responds to your letter dated December 16, 2008, and your faxed
transmission received December 18, 2008, by which you requested an advisory from
the Pennsylvania State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa. .S. § 1101 et seq., would impose any prohibitions or restrictions upon the county
executive for a county with regard to selling a parcel of land that he owns to a local
developer, when: (1) the parcel of land is contiguous to a commercial property owned
by the developer; (2) the developer wants to expand the commercial property; (3) the
developer will offer the county executive fair market value for the parcel of land; (4) the
developer owns several properties in the county and is the landlord on a couple leases
with the county; and (5) county leases are initially reviewed by the county procurement
manager and are subsequently reviewed by the county controller or county council.
Facts: As the legal representative of Mark DiVecchio ( "Mr. DiVecchio "), you have
been authorized to request an advisory from the Pennsylvania State Ethics Commission
on his behalf. You have submitted facts that may be fairly summarized as follows.
Mr. DiVecchio is the County Executive of Erie County ( "the County "),
Pennsylvania. Mr. DiVecchio owns a parcel of land ( "the Parcel ") located at 2614 East
Avenue, Erie, Pennsylvania. The Parcel is contiguous to the current site of a
convenience store named "Country Fair."
Country Fair is owned by Gregory Baldwin ( "Mr. Baldwin "), a local developer.
You express your understanding that Mr. Baldwin wants to expand Country Fair to a
much larger store that would include more fuel pumps and additional parking. It is also
your understanding that Mr. Baldwin has been and is making offers to all contiguous
neighbors of Country Fair to purchase their properties at fair market value.
You express your understanding that Mr. Baldwin will be offering Mr. DiVecchio
$22,000.00 for the Parcel, which amount represents the Parcel's fair market value. You
state that Mr. DiVecchio wishes to sell the Parcel to Mr. Baldwin.
Logue, 09 -504
January 23, 2009
Page 2
Mr. Baldwin and his family own several commercial and residential properties in
the County, and he is the landlord on a couple leases with the County. You express
your understanding that all County leases are initially reviewed by the County
Procurement Manager, and then are subsequently reviewed by the County Controller or
County Council. Specifically, if a lease is under one year in length, it is reviewed by the
County Controller. If a lease exceeds one year in length, it is reviewed by County
Council for approval.
Based upon the above submitted facts, you ask whether Mr. DiVecchio would
violate the Ethics Act by selling the Parcel to Mr. Baldwin.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester
based upon the facts that the requester has submitted. In issuing the advisory based
upon the facts that the requester has submitted, the Commission does not engage in an
independent investigation of the facts, nor does it speculate as to facts that have not
been submitted. It is the burden of the requester to truthfully disclose all of the material
facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a
defense to the extent the requester has truthfully disclosed all of the material facts.
As the County Executive of the County, Mr. DiVecchio is a public official /public
employee subject to the provisions of the Ethics Act.
Sections 1103(a) and 1103(j) of the Ethics Act provide:
§ 1103. Restricted activities
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
(j) Voting conflict. - -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 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.
65 Pa.C.S. §§ 1103(a), (j).
The following terms are defined in the Ethics Act as follows:
Logue, 09 -504
January 23, 2009
Page 3
§ 1102. 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 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. The term 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
employee, 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
particular public office or position of public employment.
65 Pa. C. S. § 1102.
Pursuant to Section 1103(a) of the Ethics Act, 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.
In each instance of a conflict of interest, the public official /public employee would
be required to abstain fully from participation. The abstention requirement would not be
limited merely to voting, but would extend to any use of authority of office, including, but
not limited to, discussing, conferring with others, and lobbying for a particular result.
Juliante, Order 809.
Subject to certain statutory exceptions, in each instance of a voting conflict,
Section 1103(j) of the Ethics Act requires the public official /public 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. In the event
that the required abstention results in the inability of the governmental body to take
action because a majority is unattainable due to the abstention(s) from conflict under
the Ethics Act, then voting is permissible provided the disclosure requirements noted
above are followed. See, Pavlovic, Opinion 02 -005.
Sections 1103(b) and 1103(c) of the Ethics Act, pertaining to improper influence,
provide as follows:
§ 1103. Restricted activities
(b) Seeking improper influence. —No person shall
offer or give to a public official, public employee or nominee
or candidate for public office or a member of his immediate
family or a business with which he is associated, anything of
monetary value, including a gift, loan, political contribution,
reward or promise of future employment based on the
offeror's or donor's understanding that the vote, official
action or judgment of the public official or public employee or
Logue, 09 -504
January 23, 2009
Page 4
nominee or candidate for public office would be influenced
thereby.
(c) Accepting improper influence. —No public
official, public employee or nominee or candidate for public
office shall solicit or accept anything of monetary value,
including a gift, loan, political contribution, reward or promise
of future employment, based on any understanding of that
public official, public employee or nominee that the vote,
official action or judgment of the public official or public
employee or nominee or candidate for public office would be
influenced thereby.
65 Pa.C.S. §§ 1103(b), (c).
The term "person" is defined in the Ethics Act as follows:
§ 1102. Definitions
"Person." A business, governmental body,
individual, corporation, union, association, firm, partnership,
committee, club or other organization or group of persons.
65 Pa.C.S. § 1102. Reference is made to Sections 1103(b) and 1103(c) not to imply
that there has been or will be any transgression thereof but merely to provide a
complete response to the question presented.
In applying Section 1103(a) of the Ethics Act to the instant matter, you are
advised that under the submitted facts, Mr. DiVecchio's sale of the Parcel to Mr.
Baldwin in and of itself would not form the basis for a transgression of Section 1103(a)
of the Ethics Act where the sale of the Parcel would occur in an arms - length transaction
and the total amount paid for the Parcel would not exceed the true fair market value of
the Parcel.
Lastly, the propriety of the proposed course of conduct has only been addressed
under the Ethics Act. Specifically not addressed herein is the applicability of the Erie
County Home Rule Charter.
Conclusion: As the County Executive of Erie County ( "the County "),
Pennsylvania, Mark DiVecchio ( "Mr. DiVecchio ") is a public official /public employee
subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. § 1101 et seq. Based upon the submitted facts that: (1) Mr. DiVecchio owns a
parcel of land ( "the Parcel ") located in the County; (2) the Parcel is contiguous to the
current site of a convenience store named "Country Fair"; (3) Country Fair is owned by
Gregory Baldwin ( "Mr. Baldwin "), a local developer; 4 Mr. Baldwin wants to expand
Country Fair and will be offering Mr. DiVecchio fair market value for the Parcel; (5) Mr.
Baldwin and his family own several commercial and residential properties in the County,
and he is the landlord on a couple leases with the County; and (6) County leases are
initially reviewed by the County Procurement Manager and subsequently reviewed by
the County Controller or the County Council, you are advised as follows. Under the
submitted facts, Mr. DiVecchio's sale of the Parcel to Mr. Baldwin in and of itself would
not form the basis for a transgression of Section 1103(a) of the Ethics Act where the
sale of the Parcel would occur in an arms - length transaction and the total amount paid
for the Parcel would not exceed the true fair market value of the Parcel.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Logue, 09 -504
January 23, 2009
Page 5
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 requester 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,
Robin M. Hittie
Chief Counsel