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HomeMy WebLinkAbout91-548 BollingerMr. Donald L. Bollinger Willow Maple Farm Box 166, R.D. 1 Millbach Road Newmanstown, PA 17073 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 12, 1991 91 -548 Re: Conflict, Public Official, Lebanon County Farmland Preservation Board, Lebanon County Purchase of Conservation Easements Program, Agricultural Conservation Easement, Sales by Members to Board. Dear Mr. Bollinger: This responds to your letter of April 26, 1991 in which you requested advice from the State Ethics Commission. Issue: Whether a member of the Lebanon County Farmland Preservation Board under the Public Official and Employee Ethics Law may participate in the Lebanon County Purchase of Conservation Easements Program administered by the said Board, if the Board member abstains from any discussion or vote concerning his own prospective application and sale. Facts: As a member of the Lebanon County Farmland Preservation Board (hereinafter "Board "), you seek the advice of the State Ethics Commission regarding your prospective participation in a program administered by the Board, specifically the Lebanon County Purchase of Conservation Easements Program (hereinafter "Program"). You note that on February 14, 1989, amendments to the Agricultural Area Security Law, 3 P.S. SS901 -915, became effective. These amendments provided for the purchase of agricultural conservation easements by the Commonwealth. The Lebanon County Program requires that any board member who wishes to sell an easement shall obtain an opinion from this Commission confirming that such participation is permitted under the provisions of the Ethics Law. You are a part -owner of a farm in Lebanon County which you and your family wish to offer to the Board for participation in the program. You acknowledge your Mr. Donald L. Bollinger Page 2 See 3 P.S. 5914.1(b). understanding that as a Board member, you could not take part in any discussions or vote concerning your own application. You have enclosed with your request for advice a copy of a letter sent by Secretary Wolff, Chairman of the State Agricultural Land Preservation Board addressed to Mr. John J. Contino, Executive Director of this Commission, concerning this same factual situation but as it applied to State Board Members. It is noted that the_ Commission considered this request of Secretary Wolff and issued Opinion 89 -030 in response to the request. You have also enclosed a copy of the Lebanon County Agricultural Land Preservation Program booklet for 1991. Both of your enclosures are incorporated herein by reference. Discussion: As a Board Member for the Lebanon County Farmland Preservation Board (Board), you are a "public official" as that term is defined in the Ethics Law and hence you are subject to the provisions of that Law. 65 P.S. 5402; 51 Pa. Code 51.1. The foregoing is based upon an analysis of the powers of the Board, both as set forth statutorily in the Agricultural Area Security Law, 3 P.S. 5901 et sect., specifically at 3 P.S. 5914.1(b), as well as in the Lebanon County Program booklet incorporated herein. The statutory powers and duties of the Board include but are not limited to: (1) Adopting rules and regulations for administering the countywide program, including the rules and regulations governing the submission of applications, and establishing standards and procedures for appraising eligible properties and for selecting or purchasing agricultural conservation easements; (2) Executing agreements in the name of Lebanon County to purchase agricultural conservation easements; (3) Using County funds to purchase, in the name of Lebanon County, agricultural conservation easements within "agricultural security areas "; (4) Making recommendations to the State Board for purchase by the Commonwealth or for purchase jointly with the Commonwealth of agricultural conservation easements; (5) Purchasing agricultural conservation easements jointly with the Commonwealth. Mr. Donald L. Bollinger Page 3 Additionally, the Lebanon County Board has the statutory power to select and retain an independent licensed real estate appraiser to determine market value and farmland value, and the Board also has the power to "establish the agricultural value and the nonagricultural value of the property subject to the agricultural conservation easement." 3 P.S. §914.1(f). The actual determination to purchase an agricultural easement is made by the Lebanon County Board. The Board utilizes a ranking system known as the Land Evaluation Site Assessment (LESA) system. The Board determines whether to appraise the farmland tract with preference for appraisals being given to applicants with LESA scores of two hundred or higher. The Lebanon County Board has reserved the right to limit the number of applications which it chooses to appraise. The Board makes the determination of whether to offer to purchase an easement following receipt of the county appraisal report and upon considering the following: (1) Evaluation according to the numerical ranking system; (2) Consistency with county map of priority agricultural areas; (3) Cost relative to total allocations and appropriations; and (4) Proximity to other lands subject to easements. Lebanon County Agricultural Land Preservation Program, 1991 at 8 -14. The Lebanon County Board also has the primary responsibility to inspect restricted land at least annually and to enforce easements. Id. at 17. When such powers and duties are compared to the operative definition of "public official" as set forth in the Ethics Law there can be no doubt that Lebanon County Board members are in fact within the parameters of that definition and are subject to the provisions of the Ethics Law and the restrictions therein. Sections 3(a) and 3(f) of the Ethics Law provide: Section 3. Restricted Activities. (a) No public official or public Mr. Donald L. Bollinger Page 4 employee shall engage in conduct that constitutes a conflict of interest. (f) No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental ` body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, 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. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value or no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. The following terms are defined in the Ethics Law: Section 2. Definitions. "Conflict or conflict of interest." Use by a public official or public employee of the authority of his office or employment or Mr. Donald L. Bollinger Page 5 any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an . industry, occupation or other group which includes toe public official or public employee, a member or his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. "Governmental body with which a public official or public employee is or has been associated." The governmental body within State government or a political subdivision by which the public official or employee is or has been employed or to which the public official or employee is or has been appointed or elected and subdivisions and offices within that governmental body. "Immediate family." A parent, spouse, child, brother or sister. "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 has a financial interest. Under the Ethics Law, we must observe the stated purpose of that Act which is to strengthen the faith and confidence of Hr. Donald L. Bollinger Page 6 people in their government by assuring the public that the financial interests of the holders of or candidates for public office do not present a conflict with the public trust. In applying the above quoted provisions of the Ethics Law to the instant matter, we will first consider the provisions of Section 3(f) of the Ethics Law. Since the Lebanon County Farmland Preservation Board is the government body with which you are associated, Section 3(f) would apply in this case. Assuming that a contract or sub - contract would be made between you and the Board pursuant to the provisions of this Program, Section 3(f) of the Ethics Law would impose the following requirements if the contract or sub- contract is valued at $500.00 or more: 1. prior public notice of the contract possibility; 2. public disclosure of applications and contracts considered; 3. public disclosure of the award of the contracts; and 4. no supervisory or overall responsibility for the implementation or administration of the contract or sub - contract by the public official /employee. We will now address the propriety of the proposed conduct under Section 3(a) of the Ethics Law. In this review, we note and recognize the concern that arises where a public program, funded with public monies and administered through a public agency, political subdivision, or governmental body is also available to public officials or employees of that agency or governmental body. We recognize the public concern and criticism that may arise if a public official or public employee who serves a governmental body receives benefits under a program of this nature. It is clear that the Ethics Law, and in particular Section 3(a), was primarily designed to restrict the activity of a public official or employee from using the authority of office for private pecuniary benefit. However, we believe that as a general rule the Ethics Law was not enacted nor should it be interpreted to preclude public officials or employees from participating in ' programs which might otherwise be available to them as citizens. Wolff, Opinion 89 -030; Woodrina, Opinion 90 -001. In order to insure that a public official or employee is not in a conflict when he seeks to participate in a program such as Mr. Donald L. Bollinger Page 7 the Lebanon County Purchase of Conservation Easements Program, he must observe the following: 1. play no role in establishing the criteria under which the program is to operate, particularly with reference to the structure or administration of the program; 2. play no role in establishing or implementing the criteria by which selections for program participation are to be made; 3. play no role in the process of selecting and reviewing applicants, awarding grants or funds, or in this case, offering to purchase and /or purchasing an easement; 4. use no confidential information acquired during the holding of public office or public employment to apply for or to obtain such funds, grants, contracts to purchase such easements, etc., and 5. abstain, publicly disclose and file a memorandum with the person responsible for recording the minutes under Section 3(j) of the Ethics Law in cases where the public official/ employee is associated with administering the Program, not only as to his own application but as to similarly situated individuals with whom the public official /employee might be competing for available funds or contracts to purchase such easements. In cases where Section 3(f) is applicable, the public official /employee would be prohibited from any supervisory or overall responsibility as to the contract or program. Through application of the above criteria, we seek to eliminate the possibility that a public official /employee who is seeking such funds or seeking to participate in these programs would be in a position to insure that the grant funds or the program benefits would be available for his own benefit. Thus, a public official or public employee in such a situation should refrain from participating in making decisions or recommendations about the program and regarding distribution of the limited funds which might be available as a result of such a program. Expressly conditioned upon the assumption that you act in conformance with the above criteria and restrictions, you may apply for and participate in the benefits associated with the Program. Should your participation in the Program result in agricultural conservation easement(s) being purchased from you and the co- owners of your farm, you would also be required Mx. Donald L. Bollinger Page 8 to abstain and comply with the above disclosure provisions as to any matters before the Board regarding said easement(s). The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the County Code. Conclusion: As a Board Member for the Lebanon County Farmland Preservation Board, you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude you from participating in the Lebanon County Purchase of Conservation Easements Program under the Agricultural Area Security Law, provided you played no role in establishing the criteria under which the program would operate, played no role in implementing the criteria for selecting applicants, played no role in selecting or reviewing applicants, used no confidential information and finally had no involvement with the administration of the program. The requirements of Section 3(f) of the Ethics Law noted above, must be complied with. You must also comply with Section 3(j) of the Ethics Law by abstaining from participating in any way whatsoever with regard to this program at all times during which you are seeking to participate in it. You must publicly disclose the nature of your interest and file a written memorandum disclosing your abstention and the nature of your interest with whoever is the secretary responsible for recording the minutes. Should your participation in the program result in the purchase of any easement(s) from you and the co- owners of your farm, you must also abstain and comply with the above disclosure requirements as to any matters before the Board regarding said easement(s). Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), 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. such. This letter is a public record and will be made available as Mr. Donald L. Bollinger Page 9 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code §2.12. ncerely, r ' 1 Vincent . Dopko, Chief Counsel