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HomeMy WebLinkAbout86-007-R BassiMelvin R. Rassi, Esquire County of Washington Commonwealth of Pennsylvania Courthouse Square, Room 702 Washington, PA 15301 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION DECIDED OCT 21 1996 MAILED 86 -007 -R Re: Conflict of Interest, County Commissioner, Leasing Property to Municipal Authority, Reconsideration of Opinion 86 -007. Bear Mr. Rassi: This responds to the request for reconsideration of the State Ethics Commission Opinion 86 -007, which was presented on September 15, 1986. I. Issue: Whether the opinion of the State Ethics Commission, of August 20, 1986 (86 -007), should he reconsidered. - II. Factual Basis for Determination: On May 29, 1986, Melvin R. Rassi, the Solicitor for Washington County, requested the opinion of the State Ethics Commission on behalf of Edward M. Paluso, an elected county commissioner. As part of the request, Mr. Bassi provided certain information relating to his request. Mr. Rassi advised that Washington County s is serviced by the Mid Mon Valley Transit Authority which has been organize 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 Octoher 3, 1985, the county commissioners voted to grant A27,600.00 to the Mid Mon Valley Transit Authority for the purchase of buses, signs, shelters, radios and other miscellaneous equipment in relation to the authority's operation. Mr. Paluso voted in favor of that grant. Melvin R. Bassi, Esquire Page 2 The Mid Mon Valley Transit Authority recently decided to seek a new office location. In this respect, they attempted to find a centrally located area from which their husiness could he conducted. The authority decided to seek office space in the Charleroi area. Mr. Paluso owns a vacant huilding in this area. The members of the authority became aware of Mr. Paluso's huilding and reviewed that site for suitahility. The authority, thereafter, decided that Mr. Paluso's huilding would he appropriate and a lease was negotiated between the executive directer of the authority and Mr. and Mrs. Paluso. Mr. Carson, as an authority member, voted in favor 'of offering Mr. Paluso the lease although his vote was not determinative. At the time of the original request, Mr. Rassi further advised that the municipal authority did not advertise its need for an office location and, as a result, no hids were sought hy the authority. Rased upon the information provided hy Mr. Rassi, the State Ethics Commission originally reviewed this matter on August 2n, 19R6 at a public meeting of the Commission. During that time no one appeared on behalf of Mr. Bassi or Mr. Paluso, The Commission, hased solely upon the information provided by Mr. Bassi, concluded that a county commissioner could not enter into a lease with a municipal authority where one of the members of the authority is a county employee and is directly responsible to the commissioners of the county unless the execution of the lease was accomplished after an open and puhlic process with the county commissioner abstaining from participating in any matter relating to the _authority memher in his position as a county employee after such award, The - further advised that all ahstentions should he puhlicly noted and recoeded along with the reasons, therefor. Rased upon the limited information provided during the original opinion request, the Commission determined that in the instant situation, no open and puhlic process had heen employed and, therefore, the execution of the lease, under such circumstances, would he . prohibited. Dn September 15, 1986, the State Ethics Commission received a request for reconsideration of its opinion. As part of this reconsideration request, Mr. Rassi indicated that certain additional facts should be considered hy the Commission in the, situation. Specifically, Mr. Bassi averred that: 1 The grant, hy the county commissioners, was a''one time grant which was awarded by the county approximately one year prior to any lease arrangement. 2. The transit authority had requested proposals from the puhlic which were solicited independently. Although no formal advertisement was made, proposals were actively pursued hy the municipal authority. 3. The composition of the transit authority involves municipalities from three specific counties. Melvin B. Bassi, Esquire Page 3 4. The review of locations for office space was conducted through an open and public process through the solicitation of proposals. Public announcement of the authority's intent to rent office space was set forth in newspapers of local publication. 5. Mr. and Mrs. Paluso entered into the lease in July 1986, several weeks prior to the Commission's issuance of its original opinion in this matter. On October 21, 1986, this Commission, once again, met in order to review this matter. During the course of this public meeting, additional testimony was received from Mr. Bassi, Mr. Paluso, and representatives of the municipal transit authority. Of importance, in relation to this matter, was the fact that Washington County makes no appointments to the transit authority. Appointments are made by local municipalities within the county. The authority's intention to rent office space was set forth in newspaper accounts of the authority's public meetings wherein such was discussed. As a result, a number of proposals were received and reviewed by the authority. The municipal authority, thereafter, elected an office space committee to visit facilities and review proposals. The board's intention to evaluate appropriate buildings was widely reported in the local news media. The committee reported all sites reviewed during its regular meetings and individual members of the committee offered suggestions about alternatives which the committee explored. We also note that Mr. Carson, a member of the municipal authority, is subject to the authority of the county commissioners and may be terminated by that governing body. III. Discussion: We have been asked to reconsider our opinion in Bassi, 86 -007. Generally, the issues to be considered in reviewing a request for reconsideration % of the type presented herein are limited. The discretion of an administrative agency in granting or denying reconsideration is broad and if exercised in a sound manner, will be sustained. See, Krane, 84- 001 -R. Reconsideration of an agency decision is generally granted to afford an opportunity to adduce testimony or evidence not offered at the original proceeding Decause it was not available. Douglas v. Workmen's Compensation Appeal Board, 32 Pa. Commw. Ct. 156, 377 A.2d 1300, (1977). Re- hearing is generally not granted solely for the purpose of strengthening a weak case or for the purpose of hearing testimony which may be cumulative. See, Pennsylvania Glass /Sand Corporation v. Workmen's Compensation Appeal Board, 46 Pa. Comm. Ct. 377, 407 A.2d 76, (1979). These well established provisions of law have specifically been adopted by the Pennsylvania State Ethics Commission in reviewing requests for reconsideration of Commission opinions. See, Coyle, 83 -002, P.U.C. /Keener- Farley, 84- 005 -R. Melvin R. Rassi, Esquire Page 4 In the instant situation, it should he noted that the information set forth both in the request for reconsideration as well as during the meeting of October 21, 1986, appears to have been availahle during the initial proceedings. However, for some reason, this information was not presented. This, of course, is sufficient justification for exercising our discretion in denying reconsideration. We do not, however, helieve that we should, in this situation, ignore all of the relevant information that was availahle. This is so, hecause we do not believe that the particular officials On question should he penalized for the failure for their representative to accurately set forth the factual context necessary for this Commission to make a decision. In reviewing this matter, it is important to note that our original opinion did not indicate that the execution of the lease herein question, in all situations, would he prohihited. This Commission merely applied long standing Commission precedent in requiring that an open and puhlic process he employed prior to the execution of such a lease. The Commission also found under the circumstances as originally set forth by Mr. Rassi, that the open and puhlic process had not heen met. Upon further review of the facts as provided during the October 21, 1986 meeting, we helieve that an open and puhlic process, in fact, was conducted. Specifically, information presented indicated that while no official advertisements or solicitation of hids was published, the authority's desire to seek new office space was reported in local news media puhlications prior to the award of the lease. Information also indicates that a number of proposals were submitted and reviewed by the authority's office space sub-committee. The authority used certain criteria and specifications in reviewing this information and, as such, we helieve that an open and puhlic process was employed. However, in order to completely comply with our requirements, the information should he made availahle upon request to the puhlic. In this way, the puhlic would he aware of all proposals received and reviewed. Additionally, we note that the final element of our previous opinion in this matter, is reaffirmed herein. That is, we helieve that Mr. Paluso must, in the future, ahstain from participating in any decision by the Washington County Commissioners regarding Mr. Carson. This would include participating in matters regarding the terms and conditions of his employment, a§ well as on the compensation to he paid. IV. Conclusion: Our price Opinion, R6 -nn7, is affirmed in part and modified in part. That part of our prior Opinion, wherein we estahlished the applicable law and requirements of the Ethics Act, is herehy affirmed. That part of our Opinion, wherein we determined that the open and puhlic process requirement of the Ethics Act was not met, is herehy modified. Rased upon the information provided on October 21, 1986, we helieve that the execution of the lease, in the instant situation, was accomplished through an open and puhlic process. Finally, for the sake of future reference, it is advised that in situations of Melvin B. Bassi, Esquire Page 5 a similar nature, strong consideration be given to supplementing any advisory opinion request with sufficient factual information in order to assist this Commission in reaching an appropriate decision. Additionally, it is also advisable, that prior to acting in a matter where an opinion is pending, that the Commission be notified so that appropriate measures may be taken to expedite the matter or issue an appropriate response thereto. 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, s z4tlt,i- G. Sieber Pancoast Chai rman