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HomeMy WebLinkAbout90-507 NanovicMr. Thomas S. Nanovic Attorneys at Law 57 Broadway P.O. Box 359 Jim Thorpe, PA 18229 -0359 Dear Mr. Nanovic: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 15, 1990 90 -507 Re: Conflict, County Commissioner, Real Estate, Sales, Commission, Sale for Incompetent Residing in County Home. This responds to your letter of January 3, 1990, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon a county commissioner from receiving the commission on the sale of certain real estate when one of the sellers has been declared an incompetent and placed in a county home which will receive the proceeds from the sale. Facts: On behalf of Luther Getz who is one of the three county commissioners in Carbon County and a realtor, you request advice as to whether he may receive a sales commission as to a certain real estate transaction. Carbon County owns and operates the Carbon County Home for the Aged, hereinafter Home. Several months ago Mr. Getz was retained as a listing agent by Percy H. and Helen M. Dare, husband and wife to sell their home. The listing agreement and the agreement of sale was signed by Mr. Dare individually and in his capacity as power of attorney for his wife. Both at that time and at the present, Ms. Dare was residing at the Home and is mentally incompetent. Subsequent to the signing of the above listing and sales agreements, problems arose with the power of attorney and consequently Mr. Dare filed a petition to have Ms. Dare declared incompetent and a guardian appointed to sell the real estate. You have submitted a copy of the court petition as well as two court orders which are incorporated herein by reference. The net proceeds from the sale are to paid to the Home for the care and maintenance of Percy H. Dare and his wife Helen M. Dare with the net proceeds divided • �.i : A i f• f �'. y r .. c e rr , 5 .. �V r .aUf. °31£ : ! w} .9' ..:.. .H 'ti o: 3' 10 e' ;);' :3 - . A _ ..I. P .i;'S e b . . i i , L., 4 b 2'o:i 4; t . 7J Mr. Thomas S. Nanovic Page 2 into two equal shares and placed in accounts for each of the Dares. The court order of December 19, 1989 provides that the home is to be sold under the terms of the agreement of sale dated June 24, 1989 which agreement provides for a commission of two thousand one hundred ninety dollars being paid to Luther A. Getz as realtor. You inquire as to whether there is any conflict or impropriety on the part of Mr. Getz from taking the six percent commission on this sale since the proceeds will be paid to the Home. Carbon County, Luther Getz is defined under the Ethics Act. As such, he is subject to the the restrictions therein are Discussion: As a commissioner for a public official as that term is 65 P.S. 5402; 51 Pa. Code 51.1. provisions of the Ethics Law and applicable to him. Section 3(a) of the Ethics Law provides: Restricted Activities No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined under the Ethics Law: "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. "Conflict " or., "conflict of interest" 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 or 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 Mr. Thomas . Nanovic Attorneys a Law 57 Broadway P.O. Box 359 Jim Thorpe, PA 18229 -0359 Re: Conflict, ounty Commissione Commission, le for Incompeten 'Residing in County Home. Dear Mr. Nanovic: This responds to our le er of January 3, 1990, in which you requested advice fro, the state Ethics Commission. Issue: Whether the Publ imposes any prohibitio . commissioner from receiv'`g real estate when one of incompetent and place • in a proceeds from the sa STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 15, 1990 90 -507 Real Estate, Sales, Official and Employee Ethics Law or restrictions upon a county t - commission on the sale of certain th sellers has been declared an co ► ty home which will receive the Facts: On behalf •f Luther Getz wh is one of the three county commissioners in 'arbon County and a ealtor, you request advice as to whether h may receive a sales •mmission as to a certain real estate tr- nsaction. Carbon Coun owns and operates the Carbon County Home for the Aged, here after Home. Several months ago . Getz was retained as a lis ng agent by Percy H. and Helen Dare, husband and wife to s= 1 their home. The listing a. eement and the agreement of sal = was signed by Mr. Dare ind''idually and in his capacity as pow= of attorney for his wif =. Both at that time and at the pres •t, Ms. Dare was residi at the Home and is mentally incompetent. Subsequent to the s .ning of the above listing and sales agree nts, problems aros= with the power of attorney and consequently Getz filed a p= ition to have Ms. Dare declared incompetent an• a guardian ap■•inted to sell the real estate. You have submitte• a copy•of court petition as well as two court orders ch are incorporated herein by reference. The net proceeds from t - sale are to paid to the Home for the. care and maintenance of Per H. are and his wife Helen M. Dare with the net proceeds divided Mr. Thomas S. Nanovic Page 3 unique to a particular public office or position of public employment. "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 has a financial interest. Section 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 or no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Based upon the submitted facts, the Ethics Law would not prohibit Mr. Getz from receiving his sales commission. You have indicated that Mr. Getz obtained the listing and sold this property in his private capacity as a realtor; the circumstances do not appear to reflect any use of the authority of his office in his capacity as a county commissioner by Mr. Getz. Further, the Commission has held that a public official or public employee is not per se precluded from outside business activities provided that those activities do not conflict with public service. Pancoe, Opinion 89 -011. Commissioner Getz could not participate or vote if any matter involving this particular real estate transaction or as to any matter involving the Dares that would come before the county board, and in the event of such an unlikely occurrence, he would have to publicly disclose his conflict under Section 3(j) of the Ethics Law as well as file a written memorandum to that effect with the secretary recording the minutes. Mr. Getz would also have to exercise care as a realtor to avoid situations which would create a conflict with his public office. Therefore, under Section 3(a) of the Ethics Act, he may not use public position or any confidential information that may have been obtained through public position in order to obtain listings in his private capacity. See Dennis, Advice 81 -520; Rudnitskv, Advice 81 -525. In addition to this specific requirement, it is also clear that he may not participate as a public official in any matter that comes before the county that involves particular property for which he has acted as a real estate agent or broker. This will also require that he may not participate in any matter that involves a client for whom he has provided similar professional services. This would be applicable not only to Mr. Thomas S. Nanovic Page 4 those particular clients and to that particular property for which he has already acted as a real estate broker but would also include any property or individuals with whom he will be involved in the foreseeable future. Further, if he knows or has a reasonable expectation that he would be called upon to vote on a matter that he may be asked to do work on behalf of a client-or that would involve a particular parcel of realty which he would be the listing agent, he should refrain from voting on such matter and comply with the requirements of Section 3(j) noted above. Shirk, Advice 81 -533. Lastly he should avoid situations where he would be called upon to participate regarding county matters that would involve individuals who have employed his services as a real estate broker or that involve realty with which he was involved as a private real estate professional. Conversely, he should not participate in matters involving individuals or parcels of realty where he shortly thereafter would obtain the listing of the property. Similarly, if he as county commissioner has already acted in a matter that involves an individual or a particular piece of property, he should forego any future real estate involvement in relation to that property or individual. 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 than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed in this advice is the applicability of the County Code. Conclusion: As a county commissioner for Carbon County, Luther Getz is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not prohibit Mr. Getz from receiving a real estate commission on a transaction where he was listing agent as to property wherein one of the owners has been declared an incompetent and placed in a county home with the net proceeds of the sale being paid to that home for the care and maintenance of that individual. In his private business activities as a realtor, Mr. Getz must observe the restrictions as outlined above to avoid a conflict with public office. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. 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. Mr. Thomas S. Nanovic Page 5 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, Vincent . Dopko, Chief Counsel