HomeMy WebLinkAbout81-519 FerdinandPeter Ferdinand
P.O. Box 307
Drums, PA 18222
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
March 10, 1981
ADVICE OF COUNSEL
RE: Township Supervisors, Sale of Real Property
Dear Mr. Ferdinand:
81 -519
This responds to your letter of February 4, 1981, in which
you, the Chairman of the Butler Township Board of Supervisors,
requested an Opinion from the Ethics Commission.
Issue: In your letter you requested advice as to whether a
Township Supervisor may sell land to the Township.
Facts: You informed us that one of the Butler Township Super-
visors owns land. The Supervisor wishes to sell his real
estate to Butler Township to be used for recreational purposes.
Discussion: The Ethics Act, 65 P.S. §401 et seq., defines
"public official" as "Any elected or appointed official in the
Executive, Legislative or Judicial Branch of the State or any
political subdivision thereof..." 65 P.S. §402. Thus, a
Township Supervisor is clearly subject to the provisions of the
Act.
The Act does not, however, totally forbid the sale of land
to a Township by a Township Supervisor. Your letter does not
state the proposed sale price of the land. This discussion
assumes that the contemplated price is greater than $500.
Section 3(c) of the Act provides that:
"No public official...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...." 65 P.S. 403(c).
Peter Ferdinand
March 10, 1981
Page 2
The Supervisor may sell land to the Township if the
contract of sale is conducted through an open and public process.
The Commission has defined "open and public process" as
one in which there is:
(1) Prior public notice; and
(2) public disclosure of all proposals considered; and
(3) public disclosure of the award of the contract.
Howard 79 -044.
A reasonableness test is employed to determine whether the
process was open and public. "Essentially, there should be
sufficient time for a reasonable and prudent competitor of the
public official...to be able to prepare and submit a proposal."
Id.
Beyond the open and public process, there is another
disclosure required by the Act. The Supervisor must report the
sale on his Statement of Financial Interest. Section (5)(b)(3)
provides that any direct or indirect interest in any real
estate which was sold or leased to the Commonwealth, any of its
agencies or political subdivisions must be reported on the
Statement of Financial Interests. 65 P.S. §405(b)(3).
The Commission is authorized by the Ethics Act to address
appearances of conflict of interest as well as actual conflicts.
65 P.S. §401. To avoid the appearance of a conflict the
Supervisor must also abstain from any discussions and /or vote
on the purchase of his land. The Supervisor must place the
reason for his abstention on the public record. Sowers, 80 -050.
Conclusion: A Supervisor subject to the Ethics Act may sell
land to the Township if the contract is awarded through an open
and public process meeting the following criteria: -
(1) Prior public notice; and
(2) public disclosure of all proposals considered; and
(3) public disclosure of the award of the contract.
The Supervisor must report the sale of land to the Township
on his Statement of Financial Interests.
Further, the Supervisor must abstain from decisions,
including voting, on matters relating to the purchase of his
land by the Township and place the reason for his abstention on
the public record.
Peter Ferdinand
March 10, 1981
Page 3
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 may be scheduled and a formal Opinion from the
Commission will be issued. You should make such a request or
indicate your disapproval of this Advice within the next 30
days.
SSC /rdp
SinFexely,
andra S. Chr
General Cou
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