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HomeMy WebLinkAbout85-541 MurphyRepresentative Thomas J. Murphy Member House of Representatives P.O. Box 173 Main Capitol Building Harrisburg, PA 17120 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 April 24, 1985 ADVICE OF COUNSEL The criteria for selection as a 20 fund replanting site are: 1. Condition of erosion and sedimentation. 2. 1971 -1979 time period of original reclamation. - 3. Available records to prove time and approval by DER. 85 -541 Re: Grant Program, Participation by Public Official /Employee Dear Representative Murphy: This responds to your letter of March 20, 1985, in which you requested Advice from the State Ethics Commission. Issue: You ask, whether you, in your position as a member of the House of Representatives, may participate in a grant program hereinafter, the Program administered by the Pennsylvania Department of Environmental Resources, hereinafter, DER. Facts: You indicate that you are the owner of property in Lancaster Township, Butler County. This property had been strip -mined approximately 20 years ago. There has been erosion of this particular land and the Pennsylvania Department of Environmental Resources, Bureau of Forestry has offered to plant the slopes with pine seedlings through the 20 Fund Project. The purpose of the 20 Fund Project is to establish growth on strip -mined lands where the originally planted vegetation failed. While the coal companies are no longer responsible for these areas, there is often insufficient vegetative cover present to prevent soil erosion. Representative Thomas J. Murphy April 24, 1985 Page 2 4. Permission by landowner to perform work on land. 5. Available funds and inspection force. 6. Little or no regrading of land necessary. You have indicated that you did not make any application for inclusion in this program and you were not aware of the programs existence. DER has confirmed that the district forester submits proposed sites for consideration and DER then attempts to obtain the landowners permission to proceed. You currently are a member of the Pennsylvania House of Representatives and ask whether there are any restrictions on your participation in the 20 Fund Project. 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), or regulations other than the Ethics Act. As a member of the Pennsylvania House of Representatives you are a "public official" as that term is defined in the Ethics Act, and therefore, subject to the requirements thereof. See 65 P.S. 402. tinder 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 65 P.S. §401. There are several provisions of the Ethics Act which must be reviewed in this situation. We will initially address the provisions of Section 3(c) of the Ethics Act. This section requires 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." While there appears as though there will be no contract here, we note for the sake of completeness that 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 House of Representatives. Thus, even assuming there were a contract between you and DER, Section 3(c) would place no restrictions upon your participation in the program in light of the fact that you would not be contracting with your own governmental body. We will assume, of course, that you have no affiliation, relationship or responsibility in relation to DER. Representative Thomas J. Murphy April 24, 1985 Page 3 We must next consider your participation in the program 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). The Ethics Act was primarily designed to prevent conflicts of interests as well as the appearance of such conflicts with the public trust. However, previous 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 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 has advised Representative Thomas J. Murphy April 24, 1985 Page 4 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, selecting who should receive assistance or funds, the public employee or official must abstain from all discussions, votes or recommendations regarding matters 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 above. This is especially true where you appear to have met the criteria listed above at Numbers 1 -4. Under such circumstances, so long as the required abstentions discussed above are observed you may apply for and participate in the benefits associated with this Programs. Representative Thomas J. Murphy April 24, 1985 Page 5 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, you must neither offer nor accept anything of value on the understanding or with the intention that an official's judgment would be influenced thereby. 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. JJC /sfb Sincer John J. no Gene . Counsel