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HomeMy WebLinkAbout83-609 BalabanMr. William R. Balaban Counsel to Department of Community and Economic Development Governor's Row 27 North Front Street P.O. Box 1284 Harrisburg, PA 17108 -1284 Dear Mr. Balaban: Mailing Address. STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 ADVICE OF COUNSEL November 2, 1983 83 -609 Re: City Contract; Member of City Planning Commission and Property Reinvestment Board This responds to your letter of August 23, 1983, in which you requested advice from the State Ethics Commission. Issue: You ask whether the City of Harrisburg may award a contract for architectural services to either a person who is a member of the Harrisburg Planning Commission or a person who is a member of the Architectural Review Commission where such contract would be awarded by the Department of Community and Economic Development. Facts: Under Pennsylvania law and City ordinance, the Harrisburg Property Reinvestment Board (HPRB) can cite vacant blighted properties and begin more rapid than traditional eminent domain proceedings if conditions are not corrected. The Harrisburg Redevelopment Authority (HRA) then acquires title to these properties and uses Community Development Block Grant (CDBG) funds to pay for the acquisition and subsequent rehabilitation of the properties, which are then sold to low and moderate income families. In conjunction with the HPRB, the Harrisburg Planning Commission (HPC) approves the purchase of the vacant properties for redevelopment by passing on the blighted status of the properties. The basic difference between the HPC and the HPRB is that the HPRB is the first body to pass on the blighted status of the properties, and the HPC, as the second entity involved, either agrees with the HPRB or not. The City of Harrisburg, through its Department of Community and Economic Development (DCED), solicits bids for architectural services where such services will not be performed by in -house rehabilitation specialists, and the DCED awards the contract to the lowest responsible bidder. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. William R. Balaban November 2, 1983 Page 2 At a recent public request for bids, a member of the HPC, C. Gary Signor, placed a bid to render architectural services for a number of blighted structures. At that time, he was also a member of the HPRB, but has since resigned. Five of the structures that he bid or had been acquired by the HRA prior to the existence of the HPRB, thus Mr. Signor never voted on whether to acquire any of the five structures. You also point out that neither Mr. Signor nor the members of the HPC or HPRB had knowledge that the City would solicit public bids for architectural services because such rehabilitation is normally performed by in -house rehabilitation specialists. Out of the many firms solicited for bids on the rehabilitation services, Mr. Signor brought in the lowest bid on a per piece /property estimate. However, Mr. Edward Lenker, a member of the City's Architectural Review Board (ARB), brought in the lowest bid on a large quantity basis. You state that the City is inclined to consider Mr. Signor as the lowest responsible bidder, and wishes to award him the contract. You also note that the ARB assesses the historic authenticity of renovated homes in the City's historic district, and and that Mr. Lenker's position on the ARB would not provide him with any advantage in preparing a bid. It is important to note that members of the ARB, the HPRB and the HPC are uncompensated Mayoral or City Council appointees. These bodies, while performing a City function, operate independently in making their determinations as to the "blighted" status of property and the authenticity of historic structures. With regard to select on of the architect to perform architectural services, neither the HPRB nor the HPC have any authority as to the final disposition of the bids, which are handled by the DCED. With the above discussion as background, you have posed several questions regarding the award of rehabilitation contracts to Mr. Signor and Mr. Lenker: 1. You ask whether the City could award a contract for rehabilitation of the five properties owned by the HRA to Mr. Signor where the status of those properties was passed upon prior to the inception of the HPRB; and 2. You ask whether Mr. Signor may be awarded a rehabilitation contract where he voted on acquisition of the properties to be rehabilitated prior to the soliciting for bids by the DCED; and 3. You ask whether Mr. Signor may continue to serve on the HPC if he abstains from voting on reinvestment matters; and 4. Finally, you ask whether the City could also award a contract to Mr. Lenker under the Ethics Act. Discussion: Although there is some question as to whether Mr. Signor and Mr. Lenker would even be covered by the Ethics Act in light of their appointed, Mr. William R. Balaban November 2, 1983 Page 3 uncompensated status, we will assume that they are subject to the Act for the purposes of the Advice. See Snider v. Thornburgh, 436 A.2d 593, 469 Pa. 159 (1981). As you are already aware, the Ethics Act regulates the conduct of public officials /employees. Section 3(a) prohibits a public official's use of his public office or confidential information received through holding public office for financial gain for himself, his family, or a business with which he is associated. Section 3(c) of the Act states that any contract of $500 or more between the public official and the governmental body with which he is associated must be made only after an "open and public process" is engaged in. Bryan, 80 -014 and Lynch, 79 -047. As you have indicated, any architectural rehabilitation contract awarded by the City will be between the DCED and the architect. In light of this fact and the restrictions of the Ethics Act, the Commission believes that any contract between Mr. Lenker, who is "associated with ARB, and the DCED would be permissible so long as Mr. Lenker uses no confidential information to obtain that contract. Also, the open and public process provision of Section 3(c) would be inapplicable in this instance because the DCED with whom the contract would be made is not the governmental body with which Mr. Lenker is associated. See Toohey, 83 -003 and Kane, 83 -004. With regard to the question you pose concerning Mr. Signor, the same principles apply. Where the DCED is the party awarding the architectural rehabilitation contract, Mr. Signor who is "associated with" HPC may accept and be awarded such a contract so long as he used no confidential information to prepare his bid or obtain the contract. Since the DCED is not the governmental body with which Mr. Signor is associated, the Section 3(c) open and public process provisions would not be applciable to any contract between Mr. Signor and the DCED. To specifically answer your first question, i.e. whether the City could award a contract for rehabilitation of the five properties awarded by the HRA to Mr. Signor where the status of those properties was passed upon prior to the inception of the HPRB, there is no conflict in light of the facts you present so long as the contract is between the DCED and the architect, and so long as Mr. Signor used no confidential information in making his bid. With regard to your second question, i.e. whether Mr. Signor may be awarded a rehabilitation contract where he voted on the question of the properties prior to the soliciting for bids by the DCED, the same principles apply again. So long as Mr. Signor had no knowledge that the DCED would solicit bids when he voted in the matter and he voted in order to establish the need for contracted services, and so long as he used no confidential information in making his bid, he may be awarded the contract. Mr. William R. Balaban November 2, 1983 Page 4 With regard to your third question, i.e. whether Mr. Signor may continue to serve on the HPC if he abstains from voting on reinvestment matters, the Commission believes that such abstention would be a prudent course of future conduct in light of the potential for possible conflict or appearance of a conflict with the public trust, especially with regard to the use of confidential information. Such confidential information would include knowledge that the DCED would solicit bids for architectural` rehabilitation services. However, we are satisfied that no such knowledge existed in this case, and believes that the City may award its contract to either Mr. Signor or Mr. Lenker. Conclusion: So long as neither Mr. Signor nor Mr. Lenker used any confidential information in bidding on the contracts at issue, the DCED may award a contract to either or both of them. Also, the Section 3(c) open and public process requirements would not apply since the DCED does not constitute the governmental body with which either Mr. Signor or Mr. Lenker is associated. With regard to Mr. Signor, it would be wise for him to abstain from voting on reinvestment matters as a Planning Commission member if he believes or has reason to believe that he may bid on architectural rehabilitation services in the future because such knowledge might be construed as a use of confidential information for personal gain: 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. q rdp Sincerely, I/CZ S tf-V6644A))/) andra S. Chr'stianson General Counsel