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HomeMy WebLinkAbout92-561Francis P. Burianek, Esquire City of Allentown City Hall 435 Hamilton Street Allentown, PA 18101 Dear Mr. Burianek: STATE ETHICS COMMISSION 309 FINANCE - BUILDING P.O. BOX 11470 HARRISBURG,, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 24, 1992 92 -561 Re: Conflict, Public Official /Employee, Contracting, City, Assistant Fire Chief, Purchase of Real Estate, Abutting Property Owner. This responds to your letters of February 5, 1992, and February 19, 1992, in which you requested advice from the State Ethics Commission. Issue: Whether a city's assistant fire chief may contract with the city to purchase a landlocked piece of property, where he is an abutting property owner, and the city's policy would be to not publicly bid the sale since any purchase by persons other than abutting property owners would be impractical and would create non - conformities to the city's land development ordinance: Facts: As an Assistant City Solicitor for the City of Allentown, you seek an advisory from the State Ethics Commission on behalf of Mr. Claude Kohl, Jr., the Assistant Fire Chief for the City of Allentown. The City of Allentown proposes to sell a tract of City land to Mr. Kohl, and you want to insure that such a conveyance would not violate the Ethics Law. The City of Allentown has an established written policy whereby the City disposes of excess property that it owns by several administrative methods. You have submitted a copy of City of Allentown Administrative Regulation No. 8 -1 -05, which two -page document is incorporated herein by reference. Section 4.7 of the said Regulation provides as follows: Parcels which are considered non - buildable and do not meet the minimum lot standards of the zoning ordinance because of their size and /or iirregular- shape shall be offered first to the Francis P. Burianek, Esquire March 24, 1992 Page 2 adjacent property owner(s) to be combined by deed with their existing property. In some cases it may be in the best interest of the City to recommend selling these odd sized lots for less than fair market value in order to get them onto the tax rolls and enhance adjacent property. Pursuant to Section 4.7, the City wants to dispose of a landlock, piece of property which it acquired as part of a former railroad right -of -way. In following its established procedure, the City offered the tract to each of the two abutting property owners, only one of whom expressed an interest, specifically Mr. Kohl. An independent appraisal was obtained for the tract, and Mr. Kohl agrees to pay that established price. You state that neither Mr. Kohl nor any of his supervisors j.n the Fire Department have any involvement in this decision- making process. Given that the tract is landlocked and unbuildable under the Zoning Ordinance of the City of Allentown and is not needed by the City, it is the City's policy not to publicly bid such sale since any purchase by persons other than abutting property owners would not be practical and would create non - conformities to the City's land development ordinance. You state that it is your belief that a sale to a City employee pursuant to an established written .policy would not violate the spirit of the Ethics Law. However, you request an advisory in this matter. On March 24, 1992, in telephone conversations with Assistant Counsel for this Commission, you provided the following additional facts. The Department of Fire for the City of Allentown is comprised of two Bureaus, specifically, the Bureau of Fire Prevention and the Bureau of Fire = :Command. The Fire Chief supervises and has the decision- making authority to hire or fire the Assistant Fire Chief. You have submitted a copy of Mr. Kohl's job description, which two -page document is incorporated herein by reference. It is noted that Mr. Kohl's job description indicates numerous responsible supervisory and managerial duties, including but not "limited to commanding_ the Bureau of Fire Prevention and directing fire- fighting and life - saving operations at fire scenes. Discussion: As the Assistant Fire Chief for the City of Allentown, Claude Kohl-, Jr., is a "public employee" as that term is defined in the Ethics Law and hence.he is subject to the provisions of the Ethics Law. 65'•F.S•.. 5402; 51 Pa. Code _51.1. Section 3(a) of the Ethics Law provides: Francis P. Burianek, Esquire *arch 24, 1992 Page 3 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 under the Ethics Law: Section 2-.: Definitions "Conflict or conflict of interest. ". Use by a public official or_pubiic 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. "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 Francis P. Burianek, Esquire March 24, 1992 Page 4 • 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. 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. Thus, • Mr. Rohl could not use the authority of his public employment or any confidential information received by holding . his public position to advance or effectuate the purchase of property from the City. The submitted facts do not reveal any such conduct and it is expressly assumed that none has occurred. In addition, Sections 3031 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. Finally, contracting restrictions as to public officials/ employees are provided in Section:: 3(f) of the Ethics Law as follows: 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 Francis P. Burianek, Esquire March 24, 1992 Page 5 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. As to Sectionr3(f) of the Ethics Law quoted above, this provision of law has strict requirements whenever a public official /employee would contract with his governmental body. The term "governmental body with which a public official or public employee is or has been associated" is defined as follows: Section 2. Definitions "Governmental body." Any department, authority, commission, committee, council, board, bureau, division, service, office officer administration, legislative body, or other - establishment in the Executive, Legislative or Judicial Branch of a State, . a nation,:or a political subdivision thereof or an agency performing a governmental function. Factually, the Department of Fire for the City of Allentown is a separate Department within the City structure and is comprised of the Bureaus of Fire Prevention and Fire Command. In applying the above quoted definition of "governmental body" to the unique organizational structure and circumstances in this case, it is clear that the governmental body with which Mr. Kohl is associated would be the Department of Fire for the City of Allentown, rather than the City itself. In this specific instance, Mr. Kohl would contracting be ontracting with his governmental body, the Department of Fire for the City of Allentown, but rather he would be contracting with the City of Allentown itself, which would not be considered to be his governmental body. Thus, the restrictions of Section 3(f) of the Ethics Law would not apply to Mr. Kohl's proposed purchase from the City of Allentown of the landlocked piece of property abutting hi% property. Francis P. Burianek, Esquire March 24, 1992 Page 6 Lastly, 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 Act has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of ordinances /regulations of the. City of Allentown and /or the respective municipal code. Conclusion: As the Assistant Fire Chief for the City of Allentown, Mr. Claude Kohl, Jr., is a public official /employee subject to the provisions of the Ethics Law. Although Section 3(a) of the Ethics Law would not preclude Mr. Kohl from purchasing from the City of Allentown a landlocked piece of property which abuts his property, Mr. Kohl could not use the authority of his public employment or any confidential information received by holding his public position to advance or effectuate such purchase of the property from the City. Under the factual circumstances set forth above, the restrictions of Section 3(f) of the Ethics Law would not apply to Mr, Kohl's proposed purchase of land from the City of Allentown, because Mr. Kohl's governmental body would be the Department of Fire for the City of Allentown rather than the City of Allentown itself. 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. This letter is a public record and will be made available as such. 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. Sincerely, ec Vincent J. Dopko Chief Counsel