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HomeMy WebLinkAbout92-655Emil W. Kantra, II, County of Lehigh Department of Law P.O. Box 1548 Allentown, PA 18105 Dear Mr. Kantra: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG. PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL Esquire December 11, 1992 Re: Conflict, Public Official /Employee, County Commissioner, Use of Authority of Office or Confidential Information, Contracting, Sublease of Lands Leased from County. This responds to your letter of November 4, 1992, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a county commissioner with regard to his proposed subleasing of lands leased from the county. Facts: As Assistant County Solicitor for Lehigh County, Pennsylvania, you request an advisory from the State Ethics Commission on behalf of County Commissioner Sterling Raber, regarding the propriety of his subleasing lands presently leased by the County to the Pennsylvania Game Commission. Your detailed factual recitation is set forth verbatim: On September 27, 1982, the County of Lehigh and the Pennsylvania Game Commission entered into a Lease Agreement (hereinafter referred to as "Lease Agreement ") for a tract of ground consisting of approximately 407 acres owned by the County of Lehigh adjacent to a game preserve operated by the County of Lehigh known as the Trexler Game Preserve. A copy of the Lease Agreement is enclosed with this letter. As required by the Lehigh County Home Rule Charter, the Lease Agreement was approved by an ordinance adopted by the Board of Commissioners on August 26, 1982. A copy of the approving ordinance, Ordinance 1982 -No. 124, is enclosed 92-655 Emil W. Kantra, II, Esquire December 11, 1992 Page 2 with this letter. As you will note, the Lease Agreement has an indeterminate term. The Lease Agreement has continued in effect up to and including the present time. Some time between the effective date of the Lease Agreement and the present time, the Pennsylvania Game Commission entered into a sublease arrangement with a local farmer permitting the farmer to farm only a portion of the 407 acres subject to the original Lease Agreement. In the event that sublease arrangement is terminated by the Pennsylvania Game Commission, Commissioner Raber, whose primary occupation is that of farming, would be interested in attempting to make a similar sublease arrangement with the Pennsylvania Game Commission. As you will note, the original Lease Agreement contains neither a prohibition against subleasing nor authority for the lessee to sublease all or any portion of the premises. In addition, while there is some monetary consideration paid by the present sublessee to the Pennsylvania Game Commission in an amount unknown to me, the County of Lehigh receives no financial benefits from these rental payments in that they are made directly to the Pennsylvania Game Commission and the County of Lehigh does not share in all or any portion of these payments. Letter of November 4, 1992, at 1 -2. The documents which you have submitted including the aforesaid Lease Agreement dated September 27, 1982, and Ordinance 1982 -No. 124 of the County are incorporated herein by reference. Discussion: As a County Commissioner for Lehigh County, Pennsylvania, Mr. Sterling Raber is a public official as that term is defined under the Ethics Law, and hence he is subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. Definitions. Emil W. Kantra, II, Esquire December 11, 1992 Page 3 "Conflict or conflict of interest." Use by a public official or public employee of the authority of his office or employment or 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 the public official or public employee, a member of 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. "Contract." An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal or real property. "Contract" shall not mean an agreement or arrangement between the State or political subdivision as one party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. 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 and no public official /employee shall solicit or accept anything 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 been or will be any transgression thereof but merely to provide a Emil W. Kantra, II, Esquire December 11, 1992 Page 4 complete response to the question presented. Section 3(f) of the Ethics Law provides: Section 3. Restricted activities (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. Parenthetically, where contracting is otherwise allowed or where there appears to be no expressed prohibitions to such contracting, the above particular provision of law would require that an open and public process must be used in all situations where a public official /employee is otherwise appropriately contracting with his own governmental body, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more. This open and public process would require that the following be observed as to the contract with the governmental body: (1) prior public notice of the employment or contracting possibility; (2) sufficient time for a reasonable and prudent competitor /applicant to be able to prepare and present an application or proposal; (3) public disclosure of all applications or proposals Emil W. Kantra, II, Esquire December 11, 1992 Page 5 considered and; (4) public disclosure of the contract awarded and offered and accepted. Section 3(f) of the Ethics Law also requires that the public official /employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities. (j) Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee, who in the discharge of his official duties, would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest, and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. If a conflict exists, Section 3(j) requires the public official /employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the Emil W. Kantra, II, Esquire December 11, 1992 Page 6 minutes or supervisor. Before applying the above provisions of the Ethics Law to the circumstances which you have submitted, it is initially noted that any question as to the permissibility of farming under the County's lease with the Pennsylvania Game Commission would be beyond the jurisdiction of the State Ethics Commission and will not be addressed. In applying the above provisions of the Ethics Law to the circumstances which you have submitted, pursuant to Section 3(a) of the Ethics Law, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. In this case, should the matter of the proposed sublease between Commissioner Raber and the Pennsylvania Game Commission come before the Lehigh County Commissioners, Commissioner Raber would clearly have a conflict of interest which would require him to abstain from any participation in the matter and which would necessitate his compliance with the disclosure requirements of Section 3(j) as set forth above. Additionally, Commissioner Raber would be precluded from otherwise using the authority of his office to advance his prospects for such a sublease, for example, by exerting his influence as a County Commissioner. As for Section 3(f), it is clear that provision of the Ethics Law would be implicated in this case if the value of the sublease is $500.00 or more. Commissioner Raber would be entering into a subcontract with a "person" (defined to include a governmental body such as the Pennsylvania Game Commission, 65 P.S. 5402) which has been awarded a contract with the governmental body (the Lehigh County Commissioners). Thus, if the value of the sublease is $500.00 or more, the restrictions of Section 3(f) would have had to have been observed as to the lease between the Pennsylvania Game Commission and the County of Lehigh in order for the proposed sublease to be valid and permissible under the Ethics Law. Assuming there is compliance with the above provisions of the Ethics Law, the Ethics Law would not preclude Commissioner Raber from entering into the proposed sublease with the Pennsylvania Game Commission. 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 Emil W. Kantra, II, Esquire December 11, 1992 Page 7 interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the County Code. Conclusion: As a County Commissioner for Lehigh County, Pennsylvania, Mr. Sterling Raber is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would prohibit Commissioner Raber from using the authority of office or confidential information received by holding his public position to advance his prospects for a sublease with the Pennsylvania Game Commission for lands presently leased by the Pennsylvania Game Commission from Lehigh County. In each instance of a conflict of interest, Commissioner Raber would be required to abstain from any participation of any nature and to fully observe the disclosure requirements of Section 3(j). If the value of the proposed sublease is $500.00 or more, the restrictions of Section 3(f) would have had to have been observed as to the lease between the Pennsylvania Game Commission and Lehigh County in order for the proposed sublease to be valid and permissible under Section 3(f) of the Ethics Law. Assuming there is compliance with the above provisions of the Ethics Law, the Ethics Law would not preclude Commissioner Raber from entering into the proposed sublease with the Pennsylvania Game Commission. 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 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 S2.12. Sincerely, 1/016et/ Vincent J. Dopko Chief Counsel Akt 61.