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HomeMy WebLinkAbout82-519 KemberlingCharles M. Kemberling Manager- Secretary Hampden Township 230 S. Sporting Hill Road Mechanisburg, PA 17055 Dear Mr. Kimberling:. Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (7171 783 -1610 February 23, 1982 ADVICE OF COUNSEL RE: Section 3(c), Recreational Land Sale 82 -519 This responds to your letter of February 16, 1982 and the follow -up correspondence of Assistant Manager Ronald J. Mull dated February 22, 1982, in which you request advice from the State Ethics Commission. Issue: You asked what restrictions or requirements are placed on your conduct under the Ethics Act as Manager - Secretary of a First Class Township in relation to the possible sale of land which you own to the Township which you serve as Manager- Secretary. Facts: You indicate that you currently serve as Manager - Secretary of Hampden Township, Cumberland County. Hampden Township is a Township of the First Class located approxi- mately seven miles west of Harrisburg. You are employed by this Township as its Manager- Secretary. Although the Township is only 50% developed at the present time its comprehensive plan which was completed in December, 1981 identified short and long range needs for the Township. Included in these needs was the necessity for devoting land near Interstate I -81 for recreational purposes. This acqusition would be designed to protect natural areas from urban development, to develop biking and hiking trails as well as parks and to provide recreational facilities in general. The plan anticipated a need for a recreational site approaching 50 acres in size some where south of Interstate I -81 and north of the northern -most State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Charles M. Kemberling February 23, 1982 Page 2 portions of the Conodoguinet Creek. The plan further identified 2 sites which were well oriented for the purpose both as to size and topography. The first was just east of Good Hope Road and South of Interstate I -81 and the second was south of Interestate I -81 and east of the Interstate I- 81 connector (L.R. 1067). In conformity with this comprehensive plan the Commissioners of Hampden Township have set aside each year a sum of money that will be added to and identified for special purposes (a capital improvement program budget). This capital improvement program identified a future major recre- ational site as part of the comprehensive plan and reflects $100,000 per year as a budget figure to amortize site acqui- sition and development of this facility. During the last quarter of 1981 the Township recreational director made an inquiry pertaining to the availability of state and federal funds from the Department of Community Affairs to assist in implementation of this comprehensive plan. The Department of Community Affairs indicated the availibility of funds for recreational land acquisition and subsequently visited three sites within Hampden _Township having the potential for being developed for the purposes consistent with the comprehensive plan. Of the three sites, one is tied up in an estate with part of the land located in a flood plain, the second is in excess of 100 acres (too large for current developmental purposes) and the third is approximately 30 acres. Each of these sites is located within the areas identified in the comprehensive plan as suitable for recreational use consis- tent with that plan. You own the third parcel of land (approximately 30 acres). You had initially removed this tract for consideration but now seek advice as to whether or not this parcel may be purchased by the Township and under what circumstances (consistent with the Ethics Act) this sale may be accomplished. Finally, you indicate that as of the date of your letter to the Ethics Commission (February 16, 1982) you have removed yourself from the administrative process involving the acquisition of any recreational site and the Township's Assistant Manager, Mr. Ron Mull, would be submitting for our review a proposed process by which the Township would acquire a property for recreational usage. Charles LL. KKmberling February 23 2982 Pace_ 3 As of February 22, 192 nit.. Mull has provided us with further information relating to the process of rev.`: em that . a rill Ybe used. by the Township far the purpose of acquirirrg recreational Ian 1. Essent.iall2, Pm. Mull proposes that on March 2 mod. MMrc2^ 9,, tg82 a black aa will appear in the "'Metros la1est. " edition of the Harrisburg Patriot. and Evening News.. Thiis ad will announce a public hearing at . which. the Commissioners: will consider the purchase of all tracts of land far recreational purposes which rreet the following criteria: (1) At least 25 acres within the tract. (2 ) South. of Interstate 1t -8l and north. af the northern -most portions cf' the Conodogt inlet Creek; (3) Suitable for recreational use. The block ad will also indicate that a public hearing will be probably held au March 9 or LO dope 'sg on the availability of the Commissioners to review the tracts considered for purchase. All tracts will then be reviewed and ranked by the Department of Community Affairs personnel (Mr. Stuart Kehler, Recreation and Open Space Specialist for Region III) . After this ranking, the Commissioners will make a final decision on land acquisition and a proposals will be made to the Department of Community Affairs for State participation in funding this acquisition. Discussion: Under the Ethics Act, 65 P.S. 4 0 et seq. there is little doubt that you as a Manager - Secretary for Hampden Township must be considered. a "'public employee" within the purview of the Act. As such your conduct must conform to the requirements of the Ethics Act. Specifically, you would be subject to the restrictions contained in Section 3("c) of the Ethics Act relating to contracting as set forth below: No public official or public employee or a member of his immeidate family or business in which the person or member of the person's immediate family is a director, officer, owner or holder of stock exceeding 5% of the equity of 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 harle s M. Kember l ing February 23, 1982 gage 4 open and public pmv ess, .including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. .Any contract made in violation cif this subsections shall be voidable by a court of competent jurisdic- tion if the suit is commenced within 90 days of making the contract, 65 g.Sa 403(c). Initially, it should be noted traat. the Commission has interpreted this portion of the Ethics Act to restrict your ability to contract with the governmental body With which you are associated' if that contract is 'ralued at nore than $S00. Sea Williams, 79 -012. Thus, any contract between yourself and .Hampden Harnpd�en Township ( the govermenta 1 body with which you are associated) valued at more than $500 must be awarded in an open and public manner. The Ethics Act indicates that an open and public process includes "prior public notice and subsequent public disclosure of all proposals considered ..and contracts awarded.' Further, in interpreting the "open and public process" which would satisfy the requirements of Section 3(c) of the Ethics Act, the Ethics Commission has adopted a. reason- ableness test. Each fact situation is to be judged on its own merit but the prime requirement is that there should be sufficient time for a reasonable and prudent competitor of the public employee or public official to be able to prepare and submit a proposal prior to the award of the contract in question. Howard, 79 -044. In your case, under the facts that you present the advertisements and the notice which are proposed to be used here would provide persons with a sufficient opportu- nity to present alternatives to the Township Commissioners. It is notable that this process will not be complete as of the meeting proposed for March 9 or March 10 but this will essentially allow persons an opportunity to submit alterna- tive tracts for consideration. It is apparent that within this process no final determination or decision of the Commissioners will be made on March 9 or 10 but that all tracts will be reviewed and ranked by an independent authority (Stuart Kehler of the Department of Community Affairs) and final decisions on purchasing will not be made even at this point but only after further deliberation of the Commissioners. Charles M. Ke*.nberling February 23, 1982 Page 5 The guidelines which you propose clearly a.. "ow for th-. open and public process that is required under the Ethics Act. If this process is followed and if your land !s ulti- mately selected for purchase by the Township Comunissionr_rs this process will conform with the requirements of the Ethics Act. Conclusion: As a public employee, you may sell your land to Halapden Township (the governmental body with which you are associated) so long as an open and public process is followed in conformity with the requirements of Section 3(c) of the Ethics Act. The process which has been outlined here would conform with those requirements. 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 cc: Richard Mull, Assistant Manager Sincerely, andra Sf son General Co sel