HomeMy WebLinkAbout92-595Dear Mr. Graham:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
June 3, 1992
Geoffrey Graham, Esquire 92 -595
Law Offices of Cynthia M. Weaver
234 South State Street
Newtown, PA 18940
Re: Conflict, Public Official /Employee, Member, County Airport
Authority, Use of Authority of Office /Employment or
Confidential Information, Member's Rental of Hangar from
Authority, Subclass.
This responds to your letter of April 13, 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 member and chairman
of a county airport authority who rents an airplane hangar from the
authority, where the authority members vote on matters pertaining
to such . leases as a block of rental properties but do not vote on
the individual rentals of hangars or the tern* of individual._
leases.
Facts: As Solicitor for the Bucks County Airport Authority
( "Authority "), you request an advisory on behalf of the Authority's
Chairman, Mr. Nathaniel Ostroff. Noting a prior request to this
Commission regarding the Authority, you state that the Authority is
responsible for the supervision and operation of two public County
airports in Bucks County, specifically, Doylestown Airport and
Quakertown Airport. As Chairman, Mr. Ostroff's duties and
obligations are essentially the same as the other Authority members
as far as discussion and voting on issues arising before the
Authority. The Chairman does not make motions or second motions on
votes before the Authority, but after discussion, the Chairman will •
vote along with other Authority members. Mr. Ostroff has the
additional duties as Chairman to call meetings to order and to -
chair those meetings.
The Authority is responsible for setting the rates and
conditions of any lease with fixed base operators who provide
private flying services and other aviation related services at the
Geoffrey Graham, Esquire
June 3, 1992
Page 2
airports. The Authority also fixes the rental rates and standard
lease agreements with private pilots either tying down their
aircraft on hard or soft surface tie - downs at the two airports or
housing their aircraft in hangars located at the two airports owned
by the Authority.
You state that the question before this Commission is whether
Mr. Ostroff has a conflict of interest as a consequence of his
renting . a hangar at Quakertown Airport for the housing of his
aircraft there when, in his capacity as an Authority member, he
must discuss and vote upon fees for such general aviation hangars
rented to private individuals at the airports. You initially note
that Mr. Ostroff has rented a hangar at Quakertown Airport since
1982 and has been in the same hangar in that airport continuously
since 1982. Furthermore, Mr. Ostroff did not become a Bucks County
Airport Authority member or serve the Authority in any capacity
whatsoever until approximately four years after his initial rental
of that hangar in 1982.
You affirmatively represent to this Commission that the
Authority does not vote on individual hangar rental fees or the
particulars of any individual lease for such a hangar. You state
that Mr. Ostroff as a long time hangar resident at Quakertown
Airport, is a member of a class of individuals who rent hangars and
tie -down space at the two County airports. The leases held by such
individuals are for a one year period and are, you feel, relatively
simplistic documents setting forth some basic rules and
regulations. A sample lease has been submitted and is incorporated
herein by reference. At sixty days prior to the annual expiration
of such leases, all of which terminate on April 30th of each year
and come up for renewal, notices are sent out by the Authority
administrators to such lease holders inquiring if they wish to _
renew. If an individual wishes to send a signed lease'.-back — "_
confirming his or her wish to renew then the lease automatically
renews and no action is taken by the Authority and no resolution of
any nature is passed concerning such lease. In the event that an
individual chooses to vacate the hangar at that time or any other
time, then the next person on the waiting list will move into that
position. The list is compiled by the administrators and is simply
made up on a first come first served basis. You state that since
Mr. Ostroff has had a hangar since 1982, there has been no action
on that hangar of any type on an individual basis whatsoever since
1982, nor, you state, is any anticipated. You further represent
that the Authority members do not vote on the individual rentals of
hangars to individual members of the public, but rather, such is
handled as an administrative process by the Authority
administrators
'You state that prior to the ` leases being sent the Authority
can, if it chooses, vote as to whether there should be a rent
increase or some other modification to the overall lease
agreements You 'represent that any modifications or increases of
rent, which are on a percentage basis, are voted on'the hangars
Geoffrey Graham, Esquire
June 3, 1992
Page 3
and /or tier -downs as a block of rental proper'iea and not on an
indi'vidual rental . basis
Finally, you state your -belief that Section 3(f) of the Ethics
Law would be inapplicable to this case. Although you acknowledge
that the rental fee on an annual basis for any individual hangar
leased to private pilots or for tie -down space would exceed the
$500 threshold, set forth in Section 3(f), you believe that Section
3(f) is-- inapplicable because Mr. Ostroff rented the space in
question in 1982 many years before becoming an Authority member and
the renewal of such lease is not subject to Authority action or
resolution. You state that'similarly, Mr. Ostroff is a member of
a'class of individuals of the general flying public to whom such
hangars are made available and to whom they are rented. Any
actions taken by the Authority on a vote to increase rentals or
charge the circumstance - of rental is , Trot done on a case -by -case
basis but is done on an across- the -board basis for all hangars and
tie -downs available at the two airports. Based upon the above, you
conclude that Sections 3(a) and 3(f) are inapplicable to this case.
You .state that ,you can find . no other Section that would be
applicable or would be cause for concern.
Based upon all of the above, you request an advisory from the
State Ethics Commission.' Although you note that Mr. Ostroff has on
occasion abstained from voting on some rent questions regarding the
hangars at the two airports, it is your opinion that such an
abstention is uncalled-for given the circumstances of the rental.
On the ,other hand, you state as obvious that if there was some
specific issue involving Mr. Ostroff and his hangar that you are
sure he would abstain on that issue as far as any discussion or
voting. You state that such -an issue has not arisen - to date since
Mr. Ostroff has been on the'Authority.
to addition to submitting a sample lease, you have also
submitted copies of the By -Laws of the Authority; three paragraphs
of minutes- from the Authority's'reorganization meeting of January
14,.1987; the Articles of Incorporation of the Authority; and the
Certificate of .' incorporation for the Authority, all of which
documents'are incorporated herein by reference.
Discussion: It is initially noted that your request for an
advisory may only'be addressed with regard to- prospective conduct.
A reading of Sections 7(10) and (11) of the Ethics Act makes it
clear that an opinion /advice may be given only as to prospective
(future) conduct... If the activity in question has already
occurred, the`Commission may not issue an opinion /advice but any
person may then submit a signed and sworn complaint which will be
investigated by the Commission if there are allegations of Ethics
Law violations by a person who is subject to the Ethics Law.
It is further noted that Sections 7(10) and (11) Of Act 9 of
1989, 65 P.S, SS407(10) and (11), provide the enumerated defenses
to a public official /employee /candidate when and only if the
Geoffrey Graham, Esquire
June 3, 1992
Page 4
material facts are truthfully disclosed. Thus, if the material
facts are not truthfully disclosed, the individual is not accorded
these defenses.
As a Member and the Chairman of the Bucks County Airport
Authority, Mr. Nathaniel Ostroff 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.
"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 - '42" =_
general public or a subclass consisting
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
Geoffrey Graham, Esquire
June 3, 1992
Page
an agreement or arrangement between the State
or political sttbd&v-ision 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
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 alb orb
where - there appears t� be no expressed ,prohibitions 'to -such
contracting, the above particular provision law would-require
lama: an open and public process must be used in-all situations-
Geoffrey Graham, Esquire
June 3, 1 -992
Page 6
where a public official /employee is otherwise appropriately
contracting with his own governmental body in an amount of $500.00
or more This open And public process would requires
(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
,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.
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
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 may .
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
iqteres j , and the remaining two members of the
Geoffrey Graham, Esquire
June 3, 1992
Page 7
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 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 member of his immediate family is associated.
However, as set forth above, the definition of "conflict" or
"conflict of interest" contains the following exclusionary
language:
• "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.
65 P.S. 6402.
Thus, it is clear that pursuant to Section 3(a), Mr. Ostroff
would have a conflict of interest as to any matter before the
Authority '_pertaining to him individually, where the use of the
authority of his public office or .confidential information received
by holding that position would result in a prohibited private
pecuniary benefit. Such matters would include but would not be
limited to any individual consideration as to •Mr. Ostroff 's hangar
rental, any lease with him and /or the terms same. For any
conflict of interest which may arise, Mr. Ostroff would be required
to abstain from any - participation of any nature whatsoever,
including but not limited to participating in discussions, lobbying
for a particular result, voting, and /or exerting influence in his
capacity as a Member and the Chairman of the Authority. In each
• instance of a conflict of interest, Mr. Ostroff would additionally .
be required to satisfy the disclosure requirements of Section 3(j)
as set forth above.
Geoffrey Graham, Esquire
June 3, 1992
Page 8
If, as you have affirmatively represented, hangar rental
matters do not -come before the Authority _for individual
consideration,, and therefore would not come before Mr. Ostroff, a
conflict of interest would not arise for him with regard to his
hangar rental. Matters considered by. the Authority which -would
apply to all of its airplane hangar rentals as a block of rental
properties would appear to fit within the exclusionary language of
the definition of "conflict" or "conflict of interest" because Mr.
Ostroff would be only one of the affected subclass of persons who
rent individual hangars at the Authority. However, this Advice is
expressly conditioned upon the assumption that the subclass would
contain more than Mr. Ostroff and that Mr. Ostroff would be
affected by any such official action to the same degree as ail
other members of the subclass.
Turning to the applicability of Section 3(f) of the Ethics
Law, that Section would apply to this case and the restrictions of
Section 3(f) as set forth above must be observed. A new contract
would arise each time a term or terms would change. Thus, a change
in the rental rate would result in the consideration of the
contract as a new contract. Even the "renewal" of a contract would
constitute a new contract because the term as to the period of
applicability of the contract would change.
Your contention that Section 3(f) would be inapplicable
because Mr. Ostroff rented the space in question in 1982 before
becoming an Authority member, is incorrect. The applicability of
Section 3(f does not hinge upon whether a previous contract
existed before the assumption of public office. Similarly, the
of Section 3(f) does not hinge upon whether the
renewal of a lease is directly subject to Authority action or
resolution, or upon the status of the public official as a member
of a subclass.
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 Municipality Authorities Act of
1945, 53 P.S. 5301 et seq., as amended.
Conclusion: As a Member and the Chairman of the Bucks County
Airport Authority, Mr. Nathaniel Ostroff is a public official
subject to the provisions of the Ethics Law. Mr. Ostroff is -
subject to the restrictions of Sections 3(a), (b) , (c) , (f) and (j)
of the Ethics Law as set forth above. Mr. Ostroff would have a
conflict of interest in any matter before the Authority pertaining
on an individual _ basis to his rental of an airport hangar from the__
Authority. Such matters would include but would not be limited to
any Authority consideration of the renewal of his lease, any
additional leases and /or the terms of such lease or leases.
Subject to the restrictions, conditions and qualifications noted
Geoffrey Graham, Esquire
June 3, 1992
Page 9
above, Mr. Ostroff would not have a conflict of interest as to
matters pertaining to all rentals of airport hangars as a block of
rental properties. Section 3(f) would apply to each new contract
between Mr. Ostroff and the Authority, which would include but
would not be limited to the renewal: of a contract. 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 52.12.
Sincerely,
Vincent . Dopko
Chief Counsel