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HomeMy WebLinkAbout84-526 SenapeJames V. Senape, Jr., Esquire 738 Centre Street Freeland, PA 18224 Matlmg Address. STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 February 10, 1984 ADVICE OF COUNSEL 84 -526 RE: Appointment, Board of Assessment Appeal, Joint Property Holders Dear Mr. Senape: This responds to your letter of January 25, 1984, in which you requested advice from the State Ethics Commission. Issue: You ask whether there is an any conflict or appearance of a conflict where a County Commissioner who owns an undivided one -half interest in property votes to appoint a person who also holds an undivided one -half interest in the same property to the Board of Assessment Appeals. Facts: You indicate that you are writing as representative of the County Commissioner in question as well as the appointee in question. You state that on January 18, 1984, the Luzerne County Board of Commissioners made appointments of three individuals to the County Board of Assessment Appeals. One of the appointments made by the County Commissioners was of Edward Klosowski to the Board of Assessment Appeals, hereinafter, the Board. You note that the three - member Board of County Commissioners voted unanimously for the appointment of Mr. Klosowski as they did for the other two appointees to the Board. You indicate that the Chairman of the County Board of Commissioners, Frank J. Trinisewski and Mr. Klosowski are owners of a parcel of real estate located in the city of Wilkes- Barre. These two persons own this property as tennants in common. During the past five years, these two persons have owned other properties together, but that those properties have either been sold or one of the co- owners has purchased or brought out the interest of the other. One remaining property in question, however, is known as 310 East Northampton Street located in Wilkes- Barre, Pennsylvania, hereinafter, referred to as the Property. The Property was originally purchased by Edward Klosowski and Robert Scorey for the purposes of conducting a carpet and linoleum sales installation service business. This purchase occurred in 1973, and in 1978 Mr. Scorey's interest in the property which was limited to an undivided one -half interest was levied upon and sold at sheriff sale. The State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania James V. Senape, Jr., Esquire February 10, 1984 Page 2 sheriff essentially sold the undivided one -half interest that Mr. Scorey held to a corporation which held a judgment against Mr. Scorey. Therefore, as of 1978 Mr. Klosowski had a new tenant in common (the corporation) which owned the undivided one -half interest. Unfortunately, the proposed supply company was not successful in selling the property until 1979, when Mr. (Commissioner) Trinisewski purchased the undivided one -half interest of the supply company for the consideration of $4,500 thereby, entitling him to the undivided one -half interest by virtue of the deed from the supply company. Of course, Mr. Klosowski continued to own the other undivided one -half interest as a result of the purchase made in 1973. You indicate that as a practical matter, Commissioner Trinisewski would not have purchased the undivided one -half interest in the property had he not previously known Mr. Klosowski, had they not worked together previously, and had they not been close friends. However, at the time of the appointment of Mr. Klosowski to the Board, there was no understanding, oral or written agreement, nor were there ever any discussions between Commissioner Trinisewski and Mr. Klosowski whereby the County Commissioner would be expected to have his official conduct influenced in the appointment of Mr. Klosowski to the Board. Likewise, there were no agreements or understanding that the property own by Mr. Klosowski and Mr. (Commissioner) Trinisewski would receive any special treatment or consideration if this property was subject to review by the Board to which Mr. Klosowski was appointed. In fact, all members of the Board have been advised by you as their legal adviser, that in any situation where they have had any previous dealings, whether as real estate brokers, owners, sellers, or attorneys in any of the property subject to review by the Board, members thereof would disqualify themselves from any involvement as a Board member with respect to such property and the Board's review thereof. Such abstention would be made part of the record or the minutes of the Board. However, even given this abstention which Mr. Klosowski, as a member of the Board, would be expected to undertake, you wish to receive a written opinion as to whether on the facts set forth above, there is any conflict of interest with respect to this appointment to the Board. Discussion: It is clear that as an elected County Commissioner, Mr. Trinisewski, is a "public official" as that term is defined in the Ethics Act, 65 P.S. 402. As such, his conduct, in particular, must conform to the requirements of the State Ethics Act. It is unclear whether Mr. Klosowski, as a member of the Board, is or is not a "public official" as that term is set forth in the provisions of the Ethics Act. Specifically, if Mr. Klosowski is appointed to this Board and serves without compensation other than reimbursement for actual expenses, it is possible that he may be excluded from the definition of "public official" as that term is set forth in the Ethics Act. However, given our conclusion as delineated below, it is unnecessary to decide definitively whether or not Mr. Klosowski is a "public official" for purposes of response to your question. James V. Senape, Jr., Esquire February 10, 1984 Page 3 It is clear that as a County Commissioner Mr. Trinisewski may not use his public office for his financial gain, for the financial gain of a member of his immediate family or a "business with which he is associated." The definition of the term or phrase "business with which he is associated" as set forth in the Ethics Act includes the following: "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. The mere fact that Commissioner Trinisewski owns an undivided one -half interest in a property with Mr. Klosowski does not indicate that Mr. Trinisewski and Mr. Klosowski, in this association, has formed a "business" with which Mr. Trinisewski, as a County Commissioner, may be deemed to be "associated" as those terms are defined in the Ethics Act. Specifically, the assumption of an undivided one -half interest in this property does not fall within the sphere of the definition of a "business with which Mr. Trinisewski is associated" and as such, Mr. Trinisewski, as a County Commissioner, would not be required to observe the mandates of Section 3(a) with respect to this property as it does not represent a "business with which he is associated. Thus, it is difficult to perceive how Commissioner Trinisewski's vote to appoint Mr. Klosowski to the Board would in any way be said to give rise to a conflict or an appearance of a conflict with the public trust under the Ethics Act insofar as the relationship of these two individuals to the property in question does not place Commissioner Trinisewski in a position to be able to utilize his public office for Mr. Klosowski's gain or his own gain even if this association did constitute a "business with which he (Commissioner Trinisewki) is associated." Of course, as you recognize, no person may offer and no pubic official may accept any thing of value on the understanding that the public official's conduct would be influenced thereby. See Section 3(b) of the Ethics Act, 65 P.S. 403(b). You state, there was no such agreement on the part of Commissioner Trinisewski to appoint Mr. Klosowski to the Board nor did Mr. Klosowski offer to, if appointed and serving as a member of the Board, provide favorable treatment to the property which he and Mr. (Commissioner) Trinisewski owned. It is true that if this particular property were to be subject to review by the Board, that Mr. Klosowski, as a member of the Board, should follow the procedures of the Board and abstain from participation in the Board's decision relating to that particular property. Otherwise, there is no inherent or per se prohibition against Mr. Klosowski having been appointed to and serving as a member of the Board under these circumstances. James V. Senape, Jr., Esquire February 10, 1984 Page 4 Conclusion: There is no inherent conflict in a County Commissioner, in this case, voting to appoint an individual to the Board of Assessment Appeals where that individual appointee is a co -owner of property with the Commissioner. Insofar as the property which is jointly owned by the Commissioner and the appointee may be subject to review by the Board of Assessment Appeals, the restrictions and requirements as to abstention outlined above, should be observed. 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 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. SSC /rdp Sincerely, / � S. Christianson General Counsel