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HomeMy WebLinkAbout08-516 CONFIDENTIALADVICE OF COUNSEL February 14, 2008 08 -516 This responds to your letter received January 8, 2008, and your faxed transmission received January 14, 2008, by which you requested confidential advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., would present any prohibitions or restrictions upon Commonwealth Official A, who serves as a Member of Governmental Body B (hereinafter the Commission "), with regard to applying for a C and /or participating in the related program administered by the Commission. Facts: As D of Commonwealth Department E (hereinafter the Department "), you request an advisory from the State Ethics Commission on behalf of: (1) Commonwealth Official A; and (2) the N of the Commission. You have submitted extensive facts that may be fairly summarized as follows. Commonwealth Official A, in his official capacity, is a Member of the Commission. The Commission is an entity within and under the authority of Commonwealth Department G. [cite; cite]. The Commission is comprised of the following voting members: (1) Commonwealth Official H; (2) Commonwealth Official A; (3) Individual 1; (4) [number] J members; and (5) [number] K members who may not be Js. The Commission is complemented with two associate, non - voting members: Individual L; and Individual M. Chairmanship of the Commission rotates on an annual basis between Commonwealth Official A and Commonwealth Official H. A majority of the voting members constitutes a quorum, and all decisions of the Commission shall require a concurrence of the voting members of the Commission. The Commission by a majority vote selects and employs an N who serves at the pleasure of the Commission and acts as staff to the Commission. The Commission may assign duties and responsibilities to the N as may be required to fulfill the Commission's obligations under state law to develop, implement, and enforce [type of programs]. The N is not supervised by Commonwealth Department G or Commonwealth Department E. Commonwealth Official A and Commonwealth Official H are each required to designate an office and staff within their respective agencies to coordinate and assist in Confidential Advice, 08 -516 February 14, 2008 Page 2 the development, implementation, and enforcement of Commission programs as they relate to each agency. Among other functions, such office and staff develop programs, oversee and administer those programs, and make suggestions to the N with regard to approval and denial of program participants and enforcement actions to be taken regarding program participants. Among its duties, the Commission is responsible for administering the P Program (hereinafter the Program ") established by what you have referred to as the [act and cite] (hereinafter the Act "). Administrative notice is taken of the following statutory provisions of the Act: • [section number] of the Act provides that [quote]. [cite]. • [section number] of the Act establishes requirements for projects eligible for Cs under the Program and further provides for the Commission to establish [types of standards] for such projects. [cite]. • [section number] of the Act provides that a project shall be certified by the Commission as meeting [types of standards] as established by the Commission. [cite]. Pursuant to the Act, the Commission has the following duties and authority: • Develop applications for the Program and receive applications for projects under the Program, [cite]; • Review applications and notify eligible applicants whether the project requirements are met, [cite]; • Authorize Cs for eligible applicants on a first -come, first - served basis, [cite]; • Receive notices from applicants of completed projects and provide notification to Commonwealth Department Q of the completion of authorized projects and the amount of Cs for eligible applicants, [cite]; • In consultation with Commonwealth Department Q, establish guidelines for the approval of applications for [types of transactions] of a C, [cite]; • Perform inspections of authorized projects, [cite]; and • Determine whether an R is not maintained for the period required by the Act, [cite]. An eligible applicant may receive between [number]% and [number]% of project costs as Cs, for up to a maximum of $[amount] in Cs for a [type of operation]. [cite, cite]. Cs are transferable by an approved eligible applicant, and there is no limit on the amount of Cs that may be purchased or assigned from an approved eligible applicant or on the amount of Cs that may be granted to a [type of Program participant]. [cite]. You state that the Act provides no authority to promulgate regulations and requires the Commission to further clarify parameters of the Program through guidelines and an application form. We take administrative notice of the Commission's meeting minutes of its [date] public meeting, at which the Commission, by official action, reviewed and approved an Confidential Advice, 08 -516 February 14, 2008 Page 3 application form and a set of guidelines for the Program. You have submitted a copy of the application form and accompanying Program guidelines. At this meeting, Commonwealth Official A's designee, acting in his stead, voted in favor of the application form and Program guidelines. The aforesaid application enumerates program requirements and conditions, application, certification and approval procedures, and project certification requirements. The accompanying guidelines set forth, inter alia, eligible Rs and the Commission's policy as to certain Program requirements. We further take administrative notice that at its aforesaid public meeting held on [date], the Commission, by official action, delegated authority to the N to review and approve or deny all Program applications in accordance with the statutory requirements and the approved guidelines. At this meeting, Commonwealth Official A's designee, acting in his stead, voted in favor of delegating such authority to the N. You state that for applications containing policy issues outside of the approved guidelines, the Commission staff will first present those issues to the Commission prior to acting on a pending application. The application period for Program Cs began on [date]. The statutory time period for Commission action on an application is [number] days. You express your view that the individual eligibility requirements enumerated in the Act would allow all members of the Commission to be eligible for a Program C. You state that as of this point, Commonwealth Official A has not submitted an application for the C available under the Program. Based upon the above submitted facts, you pose the following specific inquiries: 1. Whether the Ethics Act would permit Commonwealth Official A to apply for a C and /or participate in the Program under the various statutorily authorized forms of participation; and 2. If the Ethics Act would permit Commonwealth Official A to apply for a Program C, whether the N of the Commission could review and approve Commonwealth Official A's application and, if not, whether such review and approval could be delegated to another person, such as an S within the Department or Commonwealth Department G. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the State Ethics Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all of the material facts. Act. Commonwealth Official A is a public official subject to the provisions of the Ethics Sections 1103(a) and 1103(j) of the Ethics Act provide: § 1103. Restricted Activities Confidential Advice, 08 -516 February 14, 2008 Page 4 (a) Conflict of interest. —No public official or public employee shall engage in conduct that constitutes a conflict of interest. (j) Voting conflict. —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 public 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 body 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 interest and the remaining two members of the 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. 65 Pa.C.S. §§ 1103(a), (j). The following terms are defined in the Ethics Act as follows: § 1102. 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. The term 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. 65 Pa.C.S. § 1102. In applying the above provisions of the Ethics Act to your inquiry, Section 1103(a) of the Ethics Act prohibits a public official /public employee from using the authority of public Confidential Advice, 08 -516 February 14, 2008 Page 5 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. The State Ethics Commission has recognized that public concern and criticism may arise if a public official or public employee who serves a governmental body receives benefits under the very program which that governmental body administers. On the other hand, the Ethics Act was not enacted nor should it be interpreted to preclude public officials or public employees from participating in programs that might otherwise be available to them as citizens, as long as the restrictions of the Ethics Act are observed. Wolff, Opinion 89 -030; Woodrinq, Opinion 90 -001. In Pepper, Opinion 87 -008, the State Ethics Commission considered whether the Ethics Act would impose any restrictions or prohibitions upon a public official with regard to participating in a financial assistance funding program administered by the governmental body with which the public official was serving. The State Ethics Commission held that in order to ensure that a public official or public employee does not have a conflict of interest when he, as a citizen, seeks to participate in a loan or grant program administered by the governmental body which he serves, he must: 1. Play no role in establishing the criteria under which the program is to operate, particularly with reference to the structure or administration of the program; 2. Play no role in establishing or implementing the criteria by which selections for program participation are to be made; 3. Play no role in the process of selecting and reviewing applicants or in awarding grants or funds; 4. Use no confidential information acquired during the holding of public office or public employment to apply for or to obtain such funds, grants, etc., and 5. Abstain and satisfy the disclosure requirements of Section 1103(j) above in cases where the public official /public employee is associated with administering the loan or grant program. The abstention and disclosure would be required not only as to his own application, but also as to similarly situated individuals with whom the public official /public employee might be competing for available funds. The State Ethics Commission concluded, however, that as to the first two requirements enumerated above, past participation by the public official or public employee in establishing such criteria would not preclude participation in the program provided that the public official or public employee had no foreseeable expectation of his subsequent application to participate in the program. In applying the above State Ethics Commission determinations to your first specific inquiry, you are advised as follows. Generally, Commonwealth Official A would be permitted to apply for a C and /or participate in the Program under the various statutorily authorized forms of participation subject to the conditions that Commonwealth Official A and /or his designee: 1. Plays /played no role in establishing the criteria under which the Program is to operate, particularly with reference to the structure or administration of the program; Confidential Advice, 08 -516 February 14, 2008 Page 6 2. Plays /played no role in establishing or implementing the criteria by which selections for Program participation are to be made; 3. Plays /played no role in the process of selecting and reviewing applicants or in authorizing Cs or other Program benefits; 4. Uses no confidential information acquired during the holding of public office or public employment to apply for or to obtain a C and /or participate in the Program under the various statutorily authorized forms of participation; and 5. Abstains and satisfies the disclosure requirements of Section 1103(j) above in cases where Commonwealth Official A would be associated with administering the Program. The abstention and disclosure would be required not only as to Commonwealth Official A's own application, but also as to others with whom Commonwealth Official A might be competing for Cs or other Program benefits. Past participation by Commonwealth Official A or his designee in developing the Program applications or establishing the Program guidelines or criteria would preclude Commonwealth Official A's participation in the Program unless at the time of such past participation, Commonwealth Official A had no foreseeable expectation of his subsequent application to participate in the Program. Turning to your second specific inquiry, you are advised as follows. First, this Advice does not address the general legal issue of whether the Commission may delegate its statutory authority to review and approve or deny Program applications to others. Second, if and to the extent Commonwealth Official A would be permitted to apply for a Program C, then the N of the Commission could not review and approve Commonwealth Official A's application because Commonwealth Official A's designee, acting in his stead, voted in favor of the Commission's delegation of authority to the N to review and approve or deny Program applications. See, Confidential Opinion, 02 -004. Generally, a public official /public employee could avoid a conflict of interest as to a process by a means that would remove the public official /public employee from the opportunity to influence the process. Confidential Opinion, 07 -018. The Ethics Act itself would not preclude the possibility of the Commission -- without the involvement of Commonwealth Official A or his designee -- delegating authority to a person other than the N of the Commission to review and approve or deny Commonwealth Official A's Program application. If such authority would be delegated to a subordinate of Commonwealth Official A, in order to ensure that a conflict would be avoided, protections would have to be in place that would remove Commonwealth Official A from the opportunity to influence the process through his subordinate. The propriety of the proposed conduct has only been addressed under the Ethics Act; 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 Act. Specifically not addressed herein is the applicability of the O. Conclusion: Commonwealth Official A, who serves as a Member of Governmental Body B (hereinafter " the Commission "), is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Where factually: (1) the Commission is responsible for administering the P Program (hereinafter the Program "); (2) the Commission's duties and authority under the Program include Confidential Advice, 08 -516 February 14, 2008 Page 7 developing applications and standards for the Program, receiving applications for projects under the Program, reviewing Program applications, notifying applicants whether the project requirements are met, and authorizing Cs for eligible applicants; (3) the Commission, at its [date] public meeting, by official action, reviewed and approved an application form and a set of guidelines for the Program and delegated authority to the Commission's N to review and approve or deny all Program applications in accordance with the statutory requirements and the approved guidelines; and (4) at the Commission's [date] public meeting, Commonwealth Official A's designee, acting in his stead, voted in favor of the aforesaid actions by the Commission, you are advised as follows. Generally, Commonwealth Official A would be permitted to apply for a C and /or participate in the Program under the various statutorily authorized forms of participation subject to the conditions that Commonwealth Official A and /or his designee: (1) plays /played no role in establishing the criteria under which the Program is to operate, particularly with reference to the structure or administration of the program; (2) plays /played no role in establishing or implementing the criteria by which selections for Program participation are to be made; (3) plays /played no role in the process of selecting and reviewing applicants or in authorizing Cs or other Program benefits; (4) uses no confidential information acquired during the holding of public office or public employment to apply for or to obtain a C and /or participate in the Program under the various statutorily authorized forms of participation; and (5) abstains and satisfies the disclosure requirements of Section 1103(j) above in cases where Commonwealth Official A would be associated with administering the Program. The abstention and disclosure would be required not only as to Commonwealth Official A's own application, but also as to others with whom Commonwealth Official A might be competing for Cs or other Program benefits. Past participation by Commonwealth Official A or his designee in developing the Program applications or establishing the Program guidelines or criteria would preclude Commonwealth Official A's participation in the Program unless at the time of such past participation, Commonwealth Official A had no foreseeable expectation of his subsequent application to participate in the Program. If and to the extent Commonwealth Official A would be permitted to apply for a Program C, then the N of the Commission could not review and approve Commonwealth Official A's application because Commonwealth Official A's designee, acting in his stead, voted in favor of the Commission's delegation of authority to the N to review and approve or deny Program applications. Generally, a public official /public employee could avoid a conflict of interest as to a process by a means that would remove the public official /public employee from the opportunity to influence the process. The Ethics Act itself would not preclude the possibility of the Commission- - without the involvement of Commonwealth Official A or his designee -- delegating authority to a person other than the N of the Commission to review and approve or deny Commonwealth Official A's Program application. If such authority would be delegated to a subordinate of Commonwealth Official A, in order to ensure that a conflict would be avoided, protections would have to be in place that would remove Commonwealth Official A from the opportunity to influence the process through his subordinate. Act. The propriety of the proposed conduct has only been addressed under the Ethics Pursuant to Section 1107(11), an Advice is a complete defense in any enforcement proceeding initiated by the State Ethics Commission, and evidence of good faith conduct in any other civil or criminal proceeding, provided the requester 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 appeal the Advice to the full State Ethics Commission. A personal appearance before the State Ethics Confidential Advice, 08 -516 February 14, 2008 Page 8 Commission will be scheduled and a formal Opinion will be issued by the State Ethics Commission. Any such appeal must be in writing and must be actually received at the State Ethics Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the State Ethics Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717 - 787 - 0806). Failure to file such an appeal at the State Ethics Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Robin M. Hittie Chief Counsel