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HomeMy WebLinkAbout87-542 ReedSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) -1610 April 7,;1987 ADVICE OF COUNSEL David J. Reed, Prothonotary, Et al 87 -542 Cameron County Courthouse Emporium, PA 15834 Re: Conflict of Interest, County Prothonotary, Owner of Business Renting Space in County Complex Dear Mr. Reed: This responds to your letter of February 18, 1987, wherein you requested the advice of the State Ethics Commission. Issue: Whether the State Ethics Act presents any prohibitions upon a business which is in part owned by a county prothonotary, renting or purchasing space in a county owned trade complex. Facts: You requested the advice of the State Ethics Commission regarding the Emporium Trade Center in Cameron County, Pennsylvania. You currently serve as the elected prothonotary /clerk of court /register of wills /recorder of deeds in Cameron County, Pennsylvania. You have served in this position since January, 1986. On January 10, 1987 you were appointed assistant court administrator for the Cameron County branch of the 59th judicial district. You also have indicated that you are the president and a stockholder of a Pennsylvania corporation, Pennsylvania Door and Millwork, Ltd. This entity has a tentative agreement as of February 19, 1987 with the Mid- Cameron Authority to lease space in the Emporium Trade Center. The Emporium Trade Center is a multi - tenant /incubator complex which has been purchased from the North American Phillips Company by the Borough of Emporium utilizing Department of Community Affairs grant block program funding. The Emporim trade complex is currently managed and operated through the Mid - Cameron Municipal Authority, formerly the Emporium Borough Municipal Authority. We have previously issued a number of advices in relation to this trade center and additional information is outlined in said advices, see Tompkins, 86 -623; Reed, 87 -513. In addition to the foregoing, it should be noted that your brother Donald G. Reed is the director of the Economic Development Office for the county and was to a degree involved in certain aspects of managing the Emporium Trade Center. Your brother, at the time of the issuance of the aforecited advices was also contemplating a position of ownership or employment with Pennsylvania Door and Millwork, Ltd. You have requested the advice of the State Ethics Commission regarding what, if any, prohibitions are applicable to you as prothonotary of the county courts having an interest in a company leasing space in the Emporium Trade Center. It should be noted, that while not specifically set forth in your advice, prior information indicates that Emporium Trade Center is owned by the Mid - Cameron Municipal Authority, and that entity holds title to that property. David J. Reed, Prothonotary April 7, 1987 Page 2 Discussion: As prothonotary for the county courts, you are clearly a public official as that term is defined in the State Ethics Act. 65 P.S. §402. As such, your conduct must conform to the requirements of that law. 51 Pa. Code §1.1. Generally, the State Ethics Act provides as follows: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Within the above provision of law, you as a public official, may not use your position or any confidential information obtained therein in order to obtain a benefit for the business with which you are associated. The Ethics Act defines business with which one is associated as follows: Section 2. Definitions. "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. Clearly, under the circumstances as outline above, you are associated with Pennsylvania Door and Millwork, Ltd., and as such, can not use your position in order to obtain a financial benefit for that entity. In the instant situation, you currently serve as the prothonotary to the county courts. In this respect, you are generally involved in insuring the administration of the judicial system in the county. You do not, however, appear to have any authority or control over the Emporium Trade Center or the Mid - Cameron Authority. For the purpose of this advice, we will assume that the Mid - Cameron Municipal Authority is a seperate entity which has been formed under the Pennsylvania Municipal Authorities Act of 1945. 53 P.S. §301 et. seq. That authority is an independent entity from the county. See Dice, 85 -021. As such, it is the Mid - Cameron Authority that is involved in the activities regarding the operation, management and maintenance of the Emporium Trade Center. You, as county prothonotary, would ostensively have no control, influence, or responsibility in relation to that center. As such, it would appear as though you have no potential for using your public office in order to obtain a financial gain for the business with which you are associated, David J. Reed, Prothonotary April 7, 1987 Page 3 Pennsylvania Door and Millwork, Ltd: - 0f course, this advice is based upon the assumption, that you as county prothonotary, have no official duties or responsibilities in relation to either the Mid- Cameron Authority or in relation to the Emporium Trade Center. In addition to the foregoing, the State Ethics Act provides as follows: 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). This Commission has determined that in situations where a public official who stands in the relationship to a business as set forth above, attempts to contract with a governmental body, such must be done through an open and public process. This Commission has interpreted the above provision of law to require such open and public process when the public official attempts to contract with his own governmental body. Bryan, 80 -014; Lynch, 79 -047. The governmental body which you are apparently associated with is Cameron County. Your contract to lease space in the Emporium Trade Center, however, will be with the municipal authority, and as such, the open and public process requirements as noted above, would not appear to be applicable in the instant situation. Reference is made to the above provision in order to provide a complete response to the question you have posed. It should be noted at this point that the advice set forth herein is issued under the provisions of the State Ethics Act. This Commission has not addressed this issue under any other provision of law, such as the county code or any other rule or regulation that may be applicable to you. Similarly, this advice of counsel has been issued based upon certain assumptions of fact which were not outlined specifically in your letter of request. In the event that any particular fact is incorrectly stated and further advice is necessary, you are advised to seek further clarification of the guidelines contained herein. David J. Reed, Prothonotary April 7, 1987 Page 4 Conclusion: The State Ethics Act presents no prohibition upon the prothonotary of a county court having an interest in a corporation that leases space from a trade complex owned by a municipal authority in the county. As a public employee, the prothonotary must conform his conduct to the requirements of the State Ethics Act. In the event that you have any authority, responsibilities or duties in relation to the Emporium Trade Center, or • Mid - Cameron Authority the further advice of this Commission may be necessary. This is so in light of the fact, that as a public employee, you may not participate in any activity that would benefit a business with which you are associated. In the event that further advice is necessary, such may be obtained through further request. 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. Sin n 0 Acti- g General Counsel