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HomeMy WebLinkAbout86-007 BassiMelvin B. Bassi, Esquire County of Washington Commonwealth of Pennsylvania Courthouse Square, Room 702 Washington, PA 15301 Dear Mr. Bassi: I. Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION DECIDED AUG 2 0 7986 MAILED b 86 -007 Re: Conflict of Interest, County Commissioner, Leasing Property to Municipal Authority This responds to your request of May 29, 1986, wherein you sought the opinion of the State Ethics Commission. Whether a county commissioner may enter ipto a real property rental agreement with a municipal authority where one of the members of the authority is also a county employee. II. Factual Basis for Determination: You have requested the opinion of the State Ethics Commission as Solicitor for Washington County and specifically on behalf of Edward M. Paluso. Mr. Paluso currently serves as an elected county commissioner for Washington County, Pennsylvania. You advise that Washington County is serviced by the Mid Mon Valley Transit Authority which_°has been organized under the laws of the Commonwealth of Pennsylvania. One of the members of the authority is Norman Carson. Mr. Carson, in addition to serving on the: authority as a member, is also an employee of Washington County. Specifically, Mr. Carson serves as County Maintenance Superintendent. In that position he is responsible to and was appointed by the county commissioners., On October 3, 1985, the county commissioners voted to grant $2.7,600.,00 to the Mid Mon Valley Transit Authority or the y purchase of buses, signs, shelters, radios and other miscellaneous equipment in relation the authority's operation. Mr. Paluso voted in favor of that grant. Melvin B. Bassi, Esquire Page 2 The Mid Mon Valley Transit Authority has recently decided to seek a new office location. In this respect, they attempted to find a centrally located area from which their business could be conducted. You have advised that the authority decided to seek office space in the Charleroi area. You further advise that Mr. Paluso, coincidentally owns a vacant building in this area. The members of the authority became aware of Mr. Paluso's building and reviewed that site for suitability. The authority, thereafter, decided that Mr. Paluso's building would be appropriate and a lease was negotiated between the executive director of the authority and Mr. and Mrs. Paluso. Mr. Carson, as an authority member, voted in favor of offering Mr. Paluso the lease although you advise his vote was not determinative. In addition to the foregoing, you have advised that the transit authority did not advertise its need for an office location and, as a result, no bids were sought by the authority. You have requested the opinion of the State Ethics Commission in relation to the above situation. Specifically, you have requested our advice as to whether there is any prohibition upon Mr. and Mrs. Paluso entering into the lease as set forth above. III. Discussion: County commissioners are clearly public officials as that term is defined in the State Ethics Act. 65 P.S. §402. Mr. Paluso, therefore, as a public official would be subject to the requirements of the State Ethics Act. Bigler, 85 -020. In addition to the foregoing, it is also clear that Mr. Carson, as a member of the municipal authority is also a public official within the purview of the State Ethics Act. Dice, 85 -021. As such, this Commission has the authority to outline the duties and responsibilities of these individuals within the purview of the State Ethics Act. 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 ocher 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). In addition to the above provision of law, this Commission is also authorized to address other areas of possible conflicts of interests. 65 P.S. §403(d). The parameters of the types of activities encompassed by this particular provision of the State Ethics Act are generally determined through a review of the purpose of the Act. Generally, the State Ethics Act provides that public Melvin B. Bassi, Esquire Page 3 office is a public trust and public officials and employees should ensure that their conduct and their financial interest do not create a conflict of interest. 65 P.S. §401. A conflict of interest is created, in part, where a public official attempts to serve one or more interests that are adverse. Alfano, 80 -007. In addition to the foregoing, the State Ethics Act also provides that: Section 3. Restricted activities. (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). In the instant situation, it is clear that Mr. Paluso is not a member of the authority and has no official influence or control over that body. The authority is a separate entity and the member of the authority may act in accordance with their best judgement in matters such as the one at hand. Thus, Mr. Paluso would not be using his position to obtain any financial gain and, therefore, it is not readily apparent that Section 3(a) of the Act would be implicated by any action on the part of Mr. Paluso. On the other hand, we cannot ignore the fact that Mr. Carson is an authority member and has influence and control over authority decisions. In this respect, Mr. Carson, by voting on the final adoption of a lease, would be voting on a matter directly related to his employer. Even though that employer is another governmental body, we have held, in the past, that a public official may not vote or participate in a matter if it somehow relates :to a financial interest which he may have.- See, Welz, 86 -001. In the instant situation, Mr. Carson would be called upon to determine the advisability of renting property for the authority. The property which they are seeking to rent is owned by the individual or one of the individuals who currently supervises him and controls his public employment with the county. As a result of this, Mr. Carson, as an authority member, should abstain from participating in any matter relating to this particular lease. While we believe that there would be no use of office by Mr. Paluso in relation to the execution of this lease, the State Ethics Act allows this Commission to address other areas of possible conflict. In the instant situation, Mr. Paluso, as a County Commissioner, has, during the course of Mr. Carson's employment, no doubt taken action relating to Mr. Carson in his Melvin B. Bassi, Esquire Page 4 position as county maintenance superintendent. The county commissioners hired Mr. Carson and they have taken action regarding his salary and the conditions of his employment and have, more than likely, acted upon matters that have been brought to them by Mr. Carson. Additionally, Mr. Paluso participated in the award of a grant to the Mid -Mon Valley Transit Authority. Mr. Paluso as a county commissioner, is, in part, responsible for the general supervision of Mr. Carson. Mr. Carson, on the other hand, is an authority member in a position to grant Mr. Paluso a lease which results in Mr. Paluso receiving a financial gain. It may be difficult for the public to perceive how Mr. Paluso's actions as a county official, would not somehow be influenced by this potential leasing arrangement. It may be argued that Mr. Paluso, in dealing with Mr. Carson, to date, has done so in order to effect the favorable outcome of this lease. Additionally, it could be argued that Mr. Carson voted in favor of the lease in order to advance his position as a full -time county employee. The above factual scenarios, while hypothetical in nature, nonetheless create the types of conflicts of interest that are to be addressed by this Commission. These conflicts of interests questions are heightened in that the selection of the rental property and the review of the locations were not done through an open and public process. Specifically, no advertisements were published in the area of Charleroi once it was chosen as a suitable site and no bids were accepted by the authority. The fact that there was no public announcement of the authority's desire to rent an office, in additon to the other factors outlined above cause great concern in relation to the potential conflicts of interest. Under these conditions, we do not believe that Mr. Paluso may enter into a lease without creating an actual conflict of interest. This is not to say, however, that we believe that the current situation cannot be remedied. We believe that if appropriate actions are taken, Mr. Paluso may enter into the leasing agreement without violating the State Ethics Act. Specifically, we believe that the Mid -Mon Valley Transit Authority should publicly advertise, for space, in the area that it has chosen as a desirable location. If such an open and public process is conducted and if other members of`the public are afforded the opportunity to submit bids for rental space to the authority, we believe that many of the problems set forth above will be remedied. The bids received by the authority and the final proposal accepted should also be done through an open and public process. Additionally', Mr. Carson, as a member of the municipal authority may not participate to any degree in the authority's decision to lease office space as well as the review and acceptance of proposals. His abstention must be publicly noted and recorded and the reason for such abstention must also be publicly noted and recorded. In addition to the foregoing, it is also advised that Mr. Paluso, if he receives the lease, may not, in the future, take any action in relation to Mr. Carson as a county employee. His abstention in matters related to Mr. Carson's employment and in relation to matters submitted to the county commission by Mr. Carson, should also be publicly noted and recorded. The reason for such abstention should also be publicly noted and recorded. Melvin B. Bassi, Esquire Page 5 If the above conditions are met, we then see no reason why Mr. Paluso may not enter into the lease if, he indeed, is the applicant that is finally selected by the Mid -Mon Valley Transit Authority. Absent those factors and conditions being met, we believe that entering into a lease, in the instant situation, would create substantial questions under the State Ethics Act. IV. Conclusion: A county commissioner may not enter into a lease, with a municipal authority, where one of the members of the authority is a county employee directly responsible to the commissioners of the county unless the execution of the lease is accomplished after an open and public process with the authority member abstaining from participating in the review and award of said lease and the county commissioner abstaining from participating in any matter relating to the authority member in his position as a county employee. Additionally, all abstentions must be publicly noted and recorded along with the reasons, therefor. Finally, you are reminded of the provisions of Section 403(b), which provide that no public official may accept or offer anything of value based upon the understanding that their official action will be influenced thereby. Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance of the advice given. This letter is a public record and will be made available as such. Finally, any person may request within 15 days of service of the opinion that the Commission reconsider its opinion. The person requesting reconside- ration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. By the Commission, G. Sieber Pancoast Chairman