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HomeMy WebLinkAbout11-521 Kopas ADVICE OF COUNSEL April 22, 2011 Ted Kopas County Commissioner Westmoreland County Courthouse Square 2 North Main Street, Suite 101 Greensburg, PA 15601-2494 11-521 Dear Mr. Kopas: This responds to your letter dated February 24, 2011 (postmarked March 8, 2011, and received March 10, 2011), by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose any prohibitions or restrictions upon a county commissioner, whose spouse is employed as the executive director of the county redevelopment authority, with regard to voting on: (1) the appointment of members of the board of directors of the county redevelopment authority; (2) an annual agreement under which the county redevelopment authority agrees to provide general administrative services for three county programs; (3) the county’s consolidated annual plan that includes projects and budgets for the aforesaid county programs; or (4) the award of contracts related to projects included in the county’s consolidated annual plan. Facts: As a Commissioner for Westmoreland County (“County”), Pennsylvania, you request an advisory from the Pennsylvania State Ethics Commission. You have submitted extensive facts, the material portion of which may be fairly summarized as follows. On May 24, 2010, you were appointed by the Westmoreland County Court of Common Pleas to fill a vacancy in the office of County Commissioner. The County Board of Commissioners (“Board of Commissioners”) appoints the Members of the Board of Directors (“Board of Directors”) of the Redevelopment Authority of the County of Westmoreland (“Redevelopment Authority”). The Board of Directors consists of five Members. On March 16, 2009, your spouse, April Kopas (“Mrs. Kopas”), was hired as an Assistant Executive Director with the Redevelopment Authority. The Board of Directors appointed Mrs. Kopas to the position of Executive Director of the Redevelopment Kopas, 11-521 April 22, 2011 Page 2 Authority on May 1, 2009. In her capacity as Executive Director, Mrs. Kopas is an “at- will” employee subject to dismissal by the Board of Directors, and her responsibilities include, inter alia, overseeing employees engaged in fiscal administration and project management for state, local, and federal programs, implementing redevelopment strategies in the county’s urban centers, and providing grant administration and technical assistance for community partners. As Executive Director, Mrs. Kopas does not have authority to sign contracts binding the Redevelopment Authority. The County enters into an annual agreement (“the Administrative Services Agreement”) with the Board of Directors under which the Redevelopment Authority agrees to provide general administrative services for the following three programs (hereinafter collectively referred to as “the Programs”) conducted by the County: (1) the Community Development Block Grant (“CDBG”) Program; (2) the HOME Investment Partnerships (“HOME”) Program; and (3) the Emergency Shelter Grants (“ESG”) Program. The County compensates the Redevelopment Authority for the provision of the aforesaid services by reimbursing the Redevelopment Authority for the actual cost of salary and benefits for personnel assigned to perform such work. The Board of Directors requires the Executive Director of the Redevelopment Authority and other personnel to provide services for the County under the Administrative Services Agreement. The County prepares a Consolidated Annual Plan (“Annual Plan”), which includes: (1) projects proposed for funding by the U.S. Department of Housing and Urban Development (“HUD”) through the Programs; and (2) budgets for the Programs. County employees select projects for the CDBG Program from those proposed by sixty participating local municipalities. County employees select projects for the ESG Program from proposals submitted to the County by interested agencies. Projects for the HOME Program are selected by County employees and representatives of the two approved Community Housing Development Organizations (“the CHDOs”) operating in the County. You state that employees of the Redevelopment Authority are not involved in the evaluation of projects proposed for funding under the Programs or in the selection of projects for inclusion in the Annual Plan. After the Annual Plan has been approved by the Board of Commissioners, it is submitted to HUD for approval of funding under the Programs for that fiscal year. When CDBG Program projects are approved by the County and HUD for inclusion in the Annual Plan, the Board of Commissioners enters into a contract with each municipality for each project to provide CDBG grant funds that are to be used to compensate contractors for project services provided to that municipality. Pursuant to a contract with the Board of Commissioners, the Redevelopment Authority is authorized to use CDBG grant funds to compensate demolition contractors for services performed under contracts awarded by the Redevelopment Authority for the demolition of dilapidated structures in connection with CDBG projects. The Board of Commissioners also enters into contracts with the CHDOs relative to HOME Program projects and with approved agencies relative to ESG Program projects contained in the approved Annual Plan. Employees of the Redevelopment Authority are involved in processing invoices/requests for payment under the aforesaid Program-related contracts. You state that neither you nor Mrs. Kopas has any ownership interest in any business entity that has in the past contracted with, or may in the present or future contract with, the County or the Redevelopment Authority to provide services under any project funded by the CDBG Program, the HOME Program, or the ESG Program. Based upon the above submitted facts, you ask whether you would be permitted to vote on the following issues at public meeting(s) of the Board of Commissioners: (1) Appointing Members of the Board of Directors; Kopas, 11-521 April 22, 2011 Page 3 (2) Approving the Annual Plan; (3) Awarding the Administrative Services Agreement to the Redevelopment Authority; (4) Awarding contracts to the Redevelopment Authority to provide CDBG grant funds for demolition contracts awarded by the Redevelopment Authority under the Annual Plan; (5) Awarding CDBG Program project contracts to participating municipalities that have projects included in the Annual Plan; (6) Awarding HOME Program project contracts to participating CHDO agencies that have projects included in the Annual Plan; and (7) Awarding ESG Program project contracts to participating agencies that have projects included in the Annual Plan. 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 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. As a County Commissioner, you are a public official as that term is defined in the Ethics Act, and therefore you are subject to the provisions of the Ethics Act. Sections 1103(a) and 1103(j) of the Ethics Act provide: § 1103. Restricted activities (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 Kopas, 11-521 April 22, 2011 Page 4 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 related to Section 1103(a) 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. "Immediate family." A parent, spouse, child, brother or sister. 65 Pa.C.S. § 1102. Pursuant to Section 1103(a) of the Ethics Act, 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. The use of authority of office is not limited merely to voting, but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. In each instance of a conflict of interest, a public official/public employee would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. In applying the above provisions of the Ethics Act to the instant matter, you are advised that your spouse is a member of your “immediate family” as that term is defined in the Ethics Act. Subject to the statutory exclusions to the definition of “conflict” or “conflict of interest” as set forth in the Ethics Act, 65 Pa.C.S. §1102, pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest in matters before the Kopas, 11-521 April 22, 2011 Page 5 Board of Commissioners that would financially impact you, your spouse, or a business with which you or your spouse is associated. Having established the above general principles, your specific question is addressed as follows. You are advised that you generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matter(s) pertaining to the Board of Directors-- including but not limited to the nomination, appointment, or reappointment by the Board of Commissioners of Member(s) of the Board of Directors--because such individual(s) would exercise authority over your spouse with respect to her employment as the Redevelopment Authority’s Executive Director. See, Confidential Opinion, 05-004; Elisco, Opinion 00-003; Woodring, Opinion 90-001 (involving reciprocity of power). In each instance of a conflict of interest, you would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. Based upon the submitted facts, the County would reimburse the Redevelopment Authority for the actual cost of your spouse’s salary and benefits while performing work under the Administrative Services Agreement. However, there is no indication in the submitted facts that the reimbursement arrangement between the County and the Redevelopment Authority--or the Programs, Annual Plan, or related projects or contracts themselves--would have any financial impact upon your spouse, such as the amount of compensation or other pecuniary benefit(s) that she might receive. Therefore, under the submitted facts, you are advised that absent a basis for a conflict of interest such as a private pecuniary benefit to you, your spouse, or a business with which you or your spouse is associated, Section 1103(a) of the Ethics Act would not prohibit you from voting on: (1) the approval of the Annual Plan; (2) the award of the Administrative Services Agreement to the Redevelopment Authority; (3) the award of contracts to the Redevelopment Authority to provide CDBG grant funds for demolition contracts awarded by the Redevelopment Authority under the Annual Plan; (4) the award of CDBG Program project contracts to participating municipalities that have projects included in the Annual Plan; (5) the award of HOME Program project contracts to participating CHDO agencies that have projects included in the Annual Plan; or (6) the award of ESG Program project contracts to participating agencies that have projects included in the Annual Plan. 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 County Code. Conclusion: As a Commissioner for Westmoreland County (“County”), Pennsylvania, you are a public official subject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. Based upon the submitted facts that: (1) the County Board of Commissioners (“Board of Commissioners”) appoints the Members of the Board of Directors (“Board of Directors”) of the Redevelopment Authority of the County of Westmoreland (“Redevelopment Authority”); (2) the Board of Directors appointed your spouse, April Kopas (“Mrs. Kopas”), to the position of Executive Director of the Redevelopment Authority on May 1, 2009; (3) in her capacity as Executive Director, Mrs. Kopas is an “at-will” employee subject to dismissal by the Board of Directors; (4) the County enters into an annual agreement (“the Administrative Services Agreement”) with the Board of Directors under Kopas, 11-521 April 22, 2011 Page 6 which the Redevelopment Authority agrees to provide general administrative services for three programs (hereinafter collectively referred to as “the Programs”) conducted by the County--specifically, the Community Development Block Grant (“CDBG”) Program, the HOME Investment Partnerships (“HOME”) Program, and the Emergency Shelter Grants (“ESG”) Program; (5) the County compensates the Redevelopment Authority for the provision of the aforesaid services by reimbursing the Redevelopment Authority for the actual cost of salary and benefits for personnel assigned to perform such work; (6) the Board of Directors requires the Executive Director of the Redevelopment Authority and other personnel to provide services for the County under the Administrative Services Agreement; (7) the County prepares a Consolidated Annual Plan (“Annual Plan”) that includes projects proposed for funding by the U.S. Department of Housing and Urban Development (“HUD”) through the Programs as well as budgets for the Programs; (8) County employees select projects for the CDBG Program from those proposed by sixty participating local municipalities; (9) County employees select projects for the ESG Program from proposals submitted to the County by interested agencies; (10) projects for the HOME Program are selected by County employees and representatives of the two approved Community Housing Development Organizations (“the CHDOs”) operating in the County; (11) after the Annual Plan has been approved by the Board of Commissioners, it is submitted to HUD for approval of funding under the Programs for that fiscal year; (12) when CDBG Program projects are approved by the County and HUD for inclusion in the Annual Plan, the Board of Commissioners enters into a contract with each municipality for each project to provide CDBG grant funds that are to be used to compensate contractors for project services provided to that municipality; (13) pursuant to a contract with the Board of Commissioners, the Redevelopment Authority is authorized to use CDBG grant funds to compensate demolition contractors for services performed under contracts awarded by the Redevelopment Authority for the demolition of dilapidated structures in connection with CDBG projects; (14) the Board of Commissioners also enters into contracts with the CHDOs relative to HOME Program projects and with approved agencies relative to ESG Program projects contained in the approved Annual Plan; (15) employees of the Redevelopment Authority are involved in processing invoices/requests for payment under the aforesaid Program-related contracts; and (16) neither you nor Mrs. Kopas has any ownership interest in any business entity that has in the past contracted with, or may in the present or future contract with, the County or the Redevelopment Authority to provide services under any project funded by the CDBG Program, the HOME Program, or the ESG Program, you are advised as follows. Your spouse is a member of your “immediate family” as that term is defined in the Ethics Act. Subject to the statutory exclusions to the definition of “conflict” or “conflict of interest” as set forth in the Ethics Act, 65 Pa.C.S. §1102, pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest in matters before the Board of Commissioners that would financially impact you, your spouse, or a business with which you or your spouse is associated. You generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matter(s) pertaining to the Board of Directors--including but not limited to the nomination, appointment, or reappointment by the Board of Commissioners of Member(s) of the Board of Directors--because such individual(s) would exercise authority over your spouse with respect to her employment as the Redevelopment Authority’s Executive Director. In each instance of a conflict of interest, you would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. Under the submitted facts, absent a basis for a conflict of interest such as a private pecuniary benefit to you, your spouse, or a business with which you or your spouse is associated, Section 1103(a) of the Ethics Act would not prohibit you from voting on: (1) the approval of the Annual Plan; (2) the award of the Administrative Services Agreement to the Redevelopment Authority; (3) the award of contracts to the Redevelopment Authority to provide CDBG grant funds for demolition contracts awarded by the Redevelopment Authority under the Kopas, 11-521 April 22, 2011 Page 7 Annual Plan; (4) the award of CDBG Program project contracts to participating municipalities that have projects included in the Annual Plan; (5) the award of HOME Program project contracts to participating CHDO agencies that have projects included in the Annual Plan; or (6) the award of ESG Program project contracts to participating agencies that have projects included in the Annual Plan. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, an 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, 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 Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the 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 Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717-787-0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Robin M. Hittie Chief Counsel