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HomeMy WebLinkAbout94-603 BossertMax Bossert Boss Insulation & Roofing, Inc. R.D. #3, Box 174B Lewisburg, PA 17837 Re: Conflict, Public Official /Employee, and Developer of Subdivision, Sale Authority. Dear Mr. Bossert: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 16, 1994 94 -603 County Commissioner, Owner of Lots to County Housing This responds to your letter dated August, 1994, received August 15, 1994, 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 who also owns and is developing a subdivision in the county with regard to the sale of several building lots to the county housing authority. Facts: As a Union County Commissioner, you request an advisory from the State Ethics Commission. You own and are developing a subdivision in West Milton in Union County. You are considering the sale of several building lots to the Union County Housing Authority. You are requesting an advisory about this proposed transaction to determine whether it violates the Ethics Law or any other law. You have submitted the following facts concerning the proposed sale: 1. The Union County Housing Authority is administering a home ownership program utilizing public housing funds it received from the federal Department of Housing and Urban Development (HUD). The Housing Authority intends to purchase ten building lots, construct affordable housing units, train first time home buyers, and sell the units to these individuals. Bossert, Max, 94 -603 September 16, 1994 Page 2 2. You purchased the land you are now subdividing in about 1981. 3. The Housing Authority developed a 20 acre lot, low income housing subdivision immediately adjacent to your subdivision in the early 1980's and this subdivision has worked well. The sale of your lots would be a continuation of the Housing Authority's previous program. 4. The Housing Authority publicly advertised and solicited offers from developers previously and experienced difficulties in finding affordably priced building lots with public utilities. Your lots will contain all public utilities and will be offered at a reasonable price. The Housing Authority will have the lots appraised, and both the Housing Authority and HUD will determine whether the lots are suitable for their program and whether the lots are reasonably priced. 5. The Housing Authority will request a legal opinion from its Solicitor for his determination of the legality of the land transaction. The Solicitor's opinion will be sent to HUD also for HUD's determination. 6. As a County Commissioner, the only oversight provided to the Housing Authority is the appointment or re- appointment of Authority Board Members. The County does have a Cooperation Agreement with the Housing Authority, a copy of which you have submitted and which is incorporated herein by reference. The said agreement has a "conflict of interest" provision; however, the Housing Authority plans to request a waiver from HUD of this provision based on the facts of this land transaction. You note that HUD has an established policy for such requests. 7. The purchase agreement for the lots will be between you and the Housing Authority; the County will not be involved. Based upon all of the above, you request an advisory from the State Ethics Commission in this matter. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. § §407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the or Bossert, Max, 94 -603 September 16, 1994 Page 3 burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 P.S. H §407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. In this case, the facts which you have submitted do not indicate whether you were serving as a public official or public employee at the time you purchased the land which you now propose to sell to the Union County Housing Authority. Given that advisories are issued based upon the facts which have been submitted, this Advice is necessarily conditioned upon the assumption that at the time you purchased this land, you did not use a public position or confidential information received by being in such a position to accomplish the purchase of this property which happened to be located adjacent to the low income housing subdivision created on or about the time you purchased this land. As a County Commissioner for Union County, you are a public official as that term is defined under the Ethics Law, and hence you are 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. "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 Bosaert, Max, 94 -603 September 16, 1994 Page 4 65 P.S. §402. 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. "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. "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. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. 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 complete response to the question presented. Section 3(f) of the Ethics Law provides as follows: Bossert, Max, 94 -603 September 16, 1994 Page 5 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 the 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 possibility; (2) sufficient time for a reasonable and prudent applicant to be able to prepare and application or proposal; (3) public disclosure of all applications considered and; (4) public disclosure of the contract awarded and accepted. contracting competitor/ present an or proposals offered and Bossert, Max, 94 -603 September 16, 1994 Page 6 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 minutes or supervisor. In the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict Bossert, Max, 94 -603 September 16, 1994 Page 7 under the Ethics Law, then in that event participation is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. 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. Based upon the facts which you have submitted, the only official action which you take as a County Commissioner with regard to the County Housing Authority is to appoint or reappoint Authority Board Members. Therefore, conditioned upon the assumption that there would be no improper "understandings" violative of Section 3(b) and /or Section 3(c) - -.such as, for example, an understanding whereby you would make such an appointment in return for the effectuation of this sale to the Authority -- the Ethics Law would not prohibit your proposed sale of the ten building lots to the Union County Housing Authority. 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 and /or the "conflict of interest" provision set forth in the Cooperation Agreement between Union County and the Union County Housing Authority. Conclusion: As a County Commissioner for Union County, you are a public official subject to the provisions of the Ethics Law. Where your sole action as a County Commissioner with regard to the Union County Housing Authority is to appoint or reappoint its members, the Ethics Law would not prohibit your proposed sale of ten building lots to the Union County Housing Authority conditioned upon the following assumptions: (1) that at,the time you purchased this land you did not use a public position or confidential information received by being in such a position to accomplish the purchase of this property which was adjacent to a low income housing subdivision being developed on or about that time; and (2) that there would be no improper "understandings" which would violate Section 3(b) and /or Section 3(c) with regard to the proposed sale of these lots to the Union County Housing Authority. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Bossert, Max, 94 -603 September 16, 1994 Page 8 such. 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. 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 appeal. the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commisaion. Any such appeal must be in writing and must be actually received at the Commission within fifteen (15) days of the date of this Advice pursuant to 51 Pa .Code 513.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, oz by FAX transmission (717- 787 -0806) . Failure to file such an appeal at the Commission within fifteen (15) days may result in the dismissal of the appeal. ncerely, Vincent Dopko Chief Counsel