Ethics Commission: Brazaitis can vote on Haymaker Forest

CHARLESTON — Any benefits received by Morgantown Deputy Mayor Mark Brazaitis as a result of the city purchasing the Haymaker Forest would not be “selective, differential or in disproportion” to the benefits received by 28 other adjacent property owners.

This was the crux of the unanimous advisory opinion issued Thursday (July 12) morning by the West Virginia Ethics Commission, clearing the way for Brazaitis’ continued participation should a new deal to purchase the 40 wooded acres come back before council.

Brazaitis told The Dominion Post via text that he appreciates City Attorney Ryan Simonton’s assistance in getting the commission’s opinion.

“As with fully funding BOPARC, saving the Haymaker Forest was, from the start, one of the centerpieces of my city council campaign,” Brazaitis said, adding “I value the work the ethics commission does for our state.”

One of the points repeatedly raised during weeks of public debate over the city’s proposed purchase of the forest was the fact that Brazaitis’ property borders the forest off Courtney Avenue,  so he potentially stands to benefit personally from the purchase, creating a conflict of interest.

Brazaitis cast two votes on the issue: The first, on June 5, in favor of buying the property, and the second, on June 19, against postponing the issue.

West Virginia Ethics Commission Attorney Andy Herrick laid out the opinion, which looks only at the details in question and does not mention Brazaitis or Morgantown by name.

Herrick explained that the matter was held up to a pair of the Ethics Act provisions.

The first, the public contracts provision, looks at whether the city would have engaged in a “prohibited public contract” by entering into a deal that specifically benefits a public official.

The Ethics Act states “a public official may not have more than a limited interest in the profits or benefits of a public contract over which he or she has direct authority or control.”

Herrick explained that in this case, the council member does not stand to benefit from the contract directly as he does not own any of the land in question.

Further, any benefits he will receive will be the same benefits received by 28 other property owners.

“Not all benefits, however, create a prohibited interest in a public contract. To hold that a public body is prohibited from purchasing property because it would benefit a public official or employee under any and all circumstances would be unreasonable,” Herrick explained, noting he leaned on an opinion from the Ohio Ethics Commission, which dealt with a similar question involving a council member.

The Ohio Ethics Commission explained that benefits to a public official rise to the level of a prohibited public contract when “benefit to the council member’s property is selective, differential or in disproportion to the benefit provided to other property in the political subdivision or portion thereof.”

Herrick pointed out that in this question the council member owns one of 29 properties adjacent to the forest and therefore does not have a “definite and direct interest” in the contract.

The second provision looks at Brazaitis’ ability to vote on the matter.

State code maintains that a public official may not vote or participate in deliberations on a matter in which he or she has a financial interest.

However, Harrick explained, there is a “class exception” which maintains that even if an official does have a financial interest, “recusal is not mandated when the public official is affected as a member of a class of five or more similarly situated individuals or businesses.”

Again, as Brazaitis is one of 29 property owners adjacent to the Haymaker Forest, “He is a class of five or more similarly situated persons, and he may deliberate and vote on whether the City purchases the property.”

Morgantown City Council indefinitely postponed its efforts to purchase the forest on June 19.

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