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HomeMy WebLinkAbout85-500 JohnsonCharles Johnson c/o Richard Cornelius, Executive Director Housing Authorities of the Counties of Bradford, Sullivan & Tioga Redevelopment Authority of the County of Tioga Blossburg, Pennsylvania 16912 January 2, 1985 ADVICE OF COUNSEL 85 -500 Re: Grant Program, Participation by Public Official /Employee Dear Mr. Johnson: This responds to the letter of Richard Cornelius dated November 4, 1984, presented on your behalf in which you requested Advice from the State Ethics Commission. Issue: You ask, whether you, in your position as maintenance foreman for four public housing projects you may participate in a rental assistance program hereinafter, the Program, administered by the Bradford County Housing Authority, hereinafter the Authority. Facts: Mr. Richard Cornelius, Executive Director of the Housing Authorities of the Counties of Bradford, Sullivan, and Tioga and the Redevelopment Authority of the County of Tioga has presented a letter of requesting advice on your behalf. Actually, two letters were submitted: one dated October 8, 1984, and another referred to here as the letter of November 4, 1984. These letters indicate that you currently serve as the maintenance foreman for four public housing projects operated by the Bradford County Housing Authority, hereinafter the Authority. We have not been provided with your job description, but we will, for purposes of this response, assume that you are a "public employee" as that term is defined in the State Ethics Act, See Section 2 of the State Ethics Act, 65 P.S. 402. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Charles Johnson January 2, 1985 Page 2 The question which is posed is whether there is a conflict of interest insofar as you may enter into a contract with the Authority under which you would, as owner of a property, be paid part or all of the rent of a tenant of this property pursuant to the Section 8 /renter's assistance program operated by the Authority. Specifically, a family headed by one Loriene Luckman, hereinafter Ms. Luckman, is a tenant within a property which you own or in which you live. Ms. Luckman has applied for Section /8 renter's assistance as of August 10, 1982. There are some 488 names on the Authority's waiting list for a such assistance. Ms. Luckman's name has currently come up for review as an applicant on this list. Typically, an applicant's income is reviewed and if the applicant is financially eligible the applicant receives a certificate of participation. Then, the applicant is given a certain period of time to select a dwelling unit to lease, subject to the approval of the Authortiy. If the applicant chooses, she may apply the certificate of participation to the unit in which she is living or "shop around" for another unit to which her certificate might be applied. After the applicant makes a selection as to the unit which he or she proposes to lease, the Authority inspects the unit to determine if it meets the housing quality standards of the program and whether the rent is reasonable. When these determinations are made, a contract is offered to the owner whereby the Authority promises to pay the owner part or all of the rent (the tenant's share depends on the tenant's income and what utilities, if any, are included in the payment). Although there is no actual competitive process during this selection, in the sense that the Authority would seek competitive bids with respect to the rental properties, there is a "competitive element" in that the tenant is free to continue to lease the premises in which she currently lives or to find the best unit she can at a reasonable price and apply her certificate of participation to such a unit. Also you indicate that the availability of the renter's assistance program is generally known to the public and is available to the public. There is no confidential information available to or secured by yourself or any employee of the Authority with respect to this Program. Finally, you had no role in formulating the standards by which this Program has been, is, or will be operated. Essentially, you do not have any function with respect to the operation of this Program with respect to its standards or the process of selecting applicants. Discussion: Initially, we should note that under the Ethics Act our jurisdiction is limited to rulings under the Ethics Act. Thus, we cannot and do not, in this Advice, address the propriety of or answer any questions related to the propriety of your conduct in light of any code, statute (federal or state), regulations, etc. other than the Ethics Act. However, under the Ethics Act we may provide a ruling because your conduct is subject Charles Johnson January 2, 1985 Page 3 to the requirements of that Act because you are or we assume, for purposes of this response that you are, a "public employee" as that term is defined in the Ethics Act. See 65 P.S. 402. Under the Ethics Act, we must observe the stated purpose of that Act which is to strengthen the faith and confidence of people and their government by assuring the public that the financial interests of the holders of or candidates for public office present neither a conflict nor the appearance of a conflict with the public trust. See Section 1 of the Ethics Act, 65 P.S. 401. There are specific provisions of the Ethics Act which must be reviewed in this situation. Those provisions will be discussed more fully below. The Sections of the Ethics Act which will be discussed are Sections 3(a), (b) and (c) of the Ethics Act, 65 P.S. 403 (a), (b) and (c), respectively. We will address the provisions in Section 3(c) of the Ethics Act first. From the facts outlined above, it is clear that there will be a "contract" between you as a public employee and the Authority. Thus, the provisions of Section 3(c) of the Ethics Act would apply and require that any contract in excess of $500 between a public employee or official and a governmental body must be made only after an "open and public process." The State Ethics Commission has interpreted this provision to apply and to require an "open and public process" when the particular public employee or official seeks to contract with the "governmental body" with which he is "associated." See Bryan, 80 -014 and Lynch, 79 -047. The governmental body with which you are "associated" is the Authority. Thus, because acontract would be made between the Authority and yourself pursuant to the provisions of this Program, Section 3(c) of the Ethics Act would be applicable. Section 3(c) of the Ethics Act would require the following to be undertaken as to the contract in excess of $500 made between yourself and the governmental body with which you are associated; there must be: 1. prior public notice of the contract possibility; 2. public disclosure of applications and contracts considered; and 3. public disclosure of the award of the contracts. Although the terms of the contract between yourself and the Authority are not "advertised" or "bid," there does appear to have been prior public notice of a contract possibility with respect to this Program, in general, and, we assume, that all of the decisions regarding the application and contract process are undertaken by the Authority in the context of or available to review by the public. Given these understandings, or assumptions, we do not believe there would be any problem with Section 3(c) of the Ethics Act if you were to contract with the Authority, under this Program, under the circumstances outlined above. Charles Johnson January 2, 1985 Page 4 Assuming that the guidelines as to an open and public process mentioned above have been or will be met, we must next consider the other aspects of the propriety of your proposed conduct under other provisions of the Ethics Act. In this review, we note that we appreciate and recognize the concern that arises where a public program, funded with public monies and administered through a public agency, political subdivision, or governmental body is also available to public officials and /or employees of that agency or governmental body. We recogize the public concern and criticism that may arise if a public official or public employee who serves a governmental body receives benefits under a program of this nature. Thus, we must review this conduct in light of Section 3(a) of the Ethics Act and Section 3(b) of the Ethics Act. Section 3(a) of the Ethics Act provides as follows: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Likewise, we will undertake review of this question in light of Section 3(b) of the Ethics Act which provides as follows: Section 3. Restricted activities. (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Under these Sections of the Ethics Act and the Opinions of the Ethics Commission, it is clear that the Ethics Act was primarily designed to restrict the activity of a public employee or official where a conflict of interests exists and to address situations where the appearance of a conflict with the public trust may arise. However, the Opinions of the Ethics Commission indicate that the Ethics Act was not designed nor should it be interpreted to preclude public officials or public employees from participating in programs Charles Johnson January 2, 1985 Page 5 which might otherwise be available to them as citizens. See Toohey, 83 -003; Balaban, 83 -004 and Coploff /Hendricks, 83 -005. In these cases the Ethics Commission indicated that a public official or public employee or a business with which he is associated could participate in rehabilitation or grant programs so long as that public official or public employee: 1. played no role in establishing the criteria under which the program at issue was to operate, particularly with reference to the structure or administration of the program; 2. played no role in establishing or implementing the criteria by which selections for program participation are to be or were made; 3. played no role in the process of selecting and reviewing applicants or in awarding grants or funds; 4. used no confidential information acquired during the holding of public office or public employment to apply for or to obtain such funds, grants, etc. Furthermore, the Commission's Opinions indicate that if the body with which the public employee or official is associated is in any way involved in the administering of the grant program or selecting who, among the applicants should receive assistance or funds, the public employee or official within the governmental body who is making an application to participate in such a program or to obtain such funds, must abstain from all discussions, votes or recommendations on the applications or programs in which he or she is interested. Additionally, such a public official or public employee should also abstain from participating in matters before that governmental body which he or she serves as to the applications of other individuals who may be similarly situated and who are applying for funds or seeking to participate in the program. Essentially, the Commission sought to eliminate the possibility that a public official or public employee who was seeking such funds or seeking to participate in these grant programs would be in a position to insure the grant funds or the program benefits would be available to be applied for or applied to for his own benefit. Thus, a public official or public employee in such a situation should refrain from participating in making decisions or recommendations about the program and regarding distribution of the limited funds which might be available as a result of such a program. The reason for such abstentions must be placed on the public record. Based upon the facts as outlined above and as we understand them, we must now apply these principles to this case and particular circumstances. Essentially, we conclude that you may participate in the Program, as outlined Charles Johnson January 2, 1985 Page 6 above, without resigning from your position or relinquishing your role as a public employee. This is especially true where, as outlined above you appear to have met the criteria listed above at Numbers 1 -4. Additionally, because you play no role in the Program administration the required abstentions discussed above, are inapplicable should you apply for and participate in this Program. Finally, we must make reference to Section 3(b) of the Ethics Act in order to provide a complete response to your inquiry. Under Section 3(b) of the Ethics Act cited above, which you must observe, you must neither offer nor accept anything of value on the understanding or with the intention that your official judgment would be influenced thereby. We assume such a situation does not exist here. We add reference to this Section not to indicate that any such activity has been or will be undertaken but in a effort to provide a complete response to your inquiry. Conclusion: The Ethics Act and the rulings of the Ethics Commission reveal no reason to preclude you from participating in this Program as outlined above. So long as your conduct conforms to the guidelines discussed above, you may participate in this Program. If these guidelines are met you should encounter neither a conflict nor an appearance of conflict with the public trust under the Ethics Act in this situation. Pursuant to Section 7(9)(ii), 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 made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. SSC /sfd Sincerely, ra . Christianson General Counsel