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HomeMy WebLinkAbout84-580 PromisloDaniel Promislo, Esquire Wolf, Block, Schorr & Solis-Cohen Twelth Floor Packard Building S.E. Corner 15th & Chestnut Streets Philadelphia, PA 19102 Dear Mr. Promislo: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 June 27, 1984 ADVICE OF COUNSEL RE: Lease Agreement, Judge, Interest in Property 84 -580 This responds to your letter of June 22, 1984, in which you requested Advice from the State Ethics Commission. Issue: You ask whether it is permissable under the Ethics Act for a municipal court judge to enter into a lease with the Commonwealth. Facts: You have indicated that you represent Myer Charles Rose, who is a Judge of the Municipal Court in Philadelphia. Judge Rose proposes to enter into a lease agreement with the Commonwealth of Pennsylvania. Some questions have been raised as to the permissability or propriety of such a lease between a state employee or official such as Judge Rose and the Commonwealth. Accordingly, you have requested advice on his behalf. You indicate that some time ago the Department of General Services (DGS) advertised that it would seek to lease space to house certain operations of the Department of Public Welfare. Thereafter, Judge Rose responded to this advertisement and request for proposals by submitting a proposal and bid to DGS. Based upon this proposal, after considerable negotiations, a proposed lease agreement was made. The lease would be for one -story building of approximately 35,000 square feet located at the intersection of Germantown and Haines Streets in Philadelphia. The Judge has an "interest" in the property to be leased but you have not been more specific in identification in the nature of this interest. You also state that steps are now being taken to arrange financing to remodel subject property in line with the requirements of the proposed lease. Discussion:. As an elected official the Judge is to be considered a "public official" and to be generally subject to the jurisdiction of the State Ethics Act. As such, his conduct must conform to the requirements of the State Ethics Act insofar as they may be applied to him. Daniel Promi sl o, Esquire June 27, 1984 Page 2 The most pertinent provisions in the State Ethics Act is contained in Section 3(c) which states that: Section 3. Restricted Activities.. (c) No public official or public employee or a member of his immediate family or any business in which the person or a member of the person's immediate family is a director, officer, owner or holder of stock exceeding 5% of the equity at fair market value of the business shall enter into any contract valued at $500 or more with a governmental body 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. Any.contract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of making of the contract. 65 P.S. 403(c). In order for Section 3(c) to apply, the public official in question must be seeking to contract with the governmental body with which he is associated. Williams, 79 -012. It is clear that the governmental body with which the Judge is associated is neither the Department of General Services nor the Pepaetment of Public Welfare which would be housed in the leased facilities in which the Judge has an interest. The Judge, at most, is associated with the Municipal Court in Philadelphia within the unified judicial system. In any event, because the judicial system and this Court is completely distinct from and separate from the Department of General Services and the Department of Public Welfare, and the Judge is not associated with either Department, there is no apparent or actual conflict of interest in the proposed lease between the Judge and these Departments. In fact, Section 3(c) of the Ethics Act would not even be applicable to the circumstance you have outlined above insofar as the judge is not seeking to contract that governmental body with which he is associated. See Trace, 79 -067. Likewise, there is no indication that the Judge, in his position as a member of the Municipal Court of Philadelphia, is in a position which would enable him to use his public office for his personal gain as prohibited and restricted by Section 3(a) of the Ethics Act. See 65 P.S. 403(a). As a member of the Court, Judge Rose would not be in a position to recommend, decide, or influence the decision of the Department of General Services to advertise for or to secure space in any particular building in which to house the operations of the Department of Public Welfare as outlined above. Accordingly, there is no apparent application of Section 3(a) of the Ethics Act by virtue of these circumstances. Daniel Promi sl o, Esquire June 27, 1984 Page 3 Conclusion: As a member of the Municipal Court of Philadelphia, Judge Rose would not be involved in a conflict of interest nor would his financial interests appear to conflict with the public trust should he lease the property in which he has an interest as outlined above, to the Department of General Services. 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. 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 request that the full Commission review this Advice. A personal appearance before the full Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. S SC /n a Sincerely, ndra S. Christ anson General Counsel cc: John Wellington, Counsel to the State Treasurer