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HomeMy WebLinkAbout89-556 BrennemanSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 15, 1989 R.H. Brenneman, Vice Chairman Office of the County Commissioners Lancaster County 50 North Duke Street P.O. Box 3480 Lancaster, PA 17603 -1881 Re: Simultaneous Service, County Commissioner, Licensed Real Estate Associate Dear Mr. Brenneman: 89 -556 This responds to your letter of May 26, 1989, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act imposes any prohibition or restrictions upon a County Commissioner from also serving as a licensed real estate associate. Facts: Prior to taking office as County Commissioner in January 1987, you indicate that you were a licensed real estate associate involved in listing and selling commercial properties and businesses. You then advise that during the time of your nomination you made it clear that you intended to be a full time County Commissioner but also intended to maintain your real estate license with the firm that you were associated in an effort to maintain your expertise in your chosen profession. You further state that you made a commitment to serve as County Commissioner for no more than two terms and also to avoid conflicts or even the appearance of a conflict. You then advise that after you received the endorsement and were successful in the primary and general election, you again stated that you would be a full -time County Commissioner but likewise intended to maintain you association with the real estate firm. After you took office, you state that you did work full -time on a first priority activities bases with the county but also maintained contact with your real estate firm wherein you attended periodic sales meetings and made referrals to other agencies as opportunities arose. You indicate that none of the referrals were for transactions involving the county and that the majority R.H. Brenneman, Vice Chairman June 15, 1989 Page 2 of the income that you earned in 1987 was from transactions that you had negotiated prior to taking office. You state that you have been criticized for being a "part -time" Commissioner. After citing an incident regarding a county employee, you state that certain individuals have used that incident to charge you with a conflict as serving as County Commissioner while holding a real estate license. After advising that you put your license in escrow, you request an opinion of this Commission as to whether it would be a conflict by virtue of maintaining a real estate license and secondly whether a conflict of interest would exist based upon specific transactions that you may participate in. Discussion: As a County Commissioner for Lancaster County, you are a "public official" as that term is defined in the Ethics Act. 65 P.S. $402; 51 Pa. Code 51.1. As such, your conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to you. As to whether the Ethics Act would restrict or prohibit a county commissioner from also serving as a real estate sales agent, it is noted that the State Ethics Commission may only address questions regarding the duties and responsibilities of public officials within the purview of the State Ethics Act. The Commission does not specifically have the statutory jurisdiction to interpret the provisions of County Code. The Act does, however, provide as follows: Section 3. Restricted Activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Under Section 3(a) quoted above, this Commission has determined that use of office by a public official to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon, Orders No. 128, 129, affirmed McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, A.2d (1983); Yacobet, Order No. 412 -R, affirmed Yacobet v. State Ethics Commission, Pa. Comm. Ct. , 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow, Order 458 -R, affirmed Koslow v. State R.H. Brenneman, Vice Chairman June 15, 1989 Page 3 Ethics Commission, Pa. Commw. Ct. , 540 A.2d 1374 (1988). Likewise, a public official /employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. Section 2. Definitions. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or holder of stock. 65 P.S. 402. Since you are a licensed associate with the realty firm, it appears that the entity is a "business with which he is associated" as that term is defined under the Ethics Act. Although the Ethics Act does not state that it is inherently incompatible for a public /employee to serve as a real estate agent, the Ethics Act does prohibit an individual from serving the interest of two persons, groups or entities whose interest maybe adverse. See Alfano, Opinion 80 -007. See also McCarthy, Opinion 88 -006 where it was determined that a Director of Community Development could hold a real estate license. Section 3(b) of the Ethics Act provides: (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Under Section 3(b) of the Ethics Act cited above, which a public official or employee must observe, a public official or employee must neither offer nor accept anything of value on the understanding or with the intention that his judgment would be influenced thereby. It is assumed such a situation does not exist here. This Section is referenced not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Section 3. Restricted activities. R.H. Brenneman, Vice Chairman June 15, 1989 Page 4 (d) Other areas of possible conflict shall be addressed by the commission pursuant to paragraph (9) of Section 7. 65 P.S. 403(d). Under the above provision of law, the Ethics Commission, however, is also empowered to address other areas of possible conflict pursuant to Section 3(d). 65 P.S. §403(d). Fritzinaer, Opinion 80 -008; DeBenedictis, Opinion 86 -002. The parameters of the type of activity encompassed by this provision are generally reviewed in light of the preamble to the Ethics Act which enunciates the legislative intent of the Act. The intent and purpose of the Act is to strengthen the faith and confidence of the people in their government by assuring the public that the financial interests of the holders of public office present neither a conflict nor the appearance or a conflict with the public trust. A public official or employee, pursuant to this provision, is to ensure that their personal financial interests present neither a conflict nor the appearance of a conflict with the public trust. 65 P.S. 5401. Such a conflict may exist where an individual represents one or more adverse interests. Alfano, Opinion 80 -007; where an individual serves in positions that are incompatible or conflicting; Nelson, Opinion 85 -009, or where such an official or employee accepts compensation to which he is not entitled. Domalakes, Opinion supra. In applying the above provisions of the Ethics Act of the instant matter, since you are a real estate associate in the realty firm, it is clear that such is a business with which you are associated as that term is defined under the Ethics Act. Therefore, under Section 3(a) of the Ethics Act, you may not use public position or any confidential information that may have been obtained through public position in order to obtain listings in your private capacity. See Dennis, Advice 81 -520; Rudnitskv, Advice 81 -525. In addition to this specific requirement, it is also clear that you may not participate as a public official in any matter that comes before the county that involves particular property for which you have acted as a real estate agent or broker. This will also require that you may not participate in any matter that involves a client for whom you have provided similar professional services. This would be applicable not only to those particular clients and to that particular property for which you have already acted as a real estate broker but would also include any property or individuals with whom you will be involved in the foreseeable future. Further, if you know or have a reasonable expectation that you would be called upon to vote on a matter that you may be asked to do work on behalf of a client or that would involve a particular parcel of realty which you would be the listing agent, you should refrain from voting on such matter and place the reason for your abstention on the R.B. Brenneman, Vice Chairman June 15, 1989 Page 5 public record. Shirk, Advice 81 -533. Lastly you should avoid situations where you would be called upon to participate regarding county matters that would involve individuals who have employed your services as a real estate broker or that involve realty with which you were involved as a private real estate professional. Conversely, you should not participate in matters involving individuals or parcels of realty where you shortly thereafter would obtain the listing of the property. Similarly, if you as County Commissioner have already acted in a matter that involves an individual or a particular piece of property, you should forgo any future real estate involvement in relation to that property or individual. Lastly, the property of the proposed conduct has only been addressed under the Ethics Act. The applicability of any other statue, 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. Conclusion: As a County Commissioner you are a public official subject to the provisions of the Ethics Act. While no inherent conflict of interest exists as to serving as a County Commissioner and real estate broker, you may not use public position to obtain work as a real estate broker. In particular, you may not participate in any matter that comes before the county that relates to particular parcel of property for which you were the listing agent or in relation to a particular individual who employed you professional services. You may not use any confidential information obtained through public position to obtain private clients for yourself or your real estate employer. If you know at the time of an official vote or action on a matter relating to a client or property as to which you were or may be involved, you must abstain from voting, note you abstention of public record and the reason for your abstention. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Pursuant to Section 7(9)(ii), 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 R.H. Brenneman, Vice Chairman June 15, 1989 Page 6 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 §2.12. Sincerely, Vincent . Dopko, General Counsel