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HomeMy WebLinkAbout88-519 PrestonMs. Joy A. Preston, Director Department of Community Development Borough of Dunmore 400 S. Blakely Street Dunmore, Pennsylvania 18512 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 February 24, 1988 ADVICE OF COUNSEL 88 - 519 Re: Conflict of Interest, Public Official, Immediate Family, Mother Dear Ms. Preston: This responds to your letter of January 20, in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act presents any restriction upon a Community Development Director from voting or participating for her mother regarding her application for a rehabilitation loan. Facts: You state that you are the Director of the Department of Community Development in the Borough of Dunmore which is currently operating a housing rehabilitation program to benefit low and moderate income residents by providing block grant funds for necessary home repairs. You also state that in order for a home owner to be eligible, he must have a household income level of or below that set forth by HUD. You note that the Community Development Department, of which you are Director, administers this program. You further state that your mother, Rita Preston, has applied for a rehabilitation loan in that her income is within the eligible range of the program. You note that all applicants must meet the state and federal requirements and that no exceptions are made. You conclude by stating that you will refrain from participating in any aspect of your mother's application contract and request advice under those circumstances as to whether there would be any conflict under the Ethics Act. Discussion: As a Director for Community Development Department of Dunmore Borough , you are a public employee within the definition of that term as set forth in the Ethics Act and the regulations of this Commission. 65 P.S. §402; 51 Pa. Code §1.1. As such, you are subject to the provisions of the Ethics Act. Ms. Joy A. Preston, Director February 24, 1988 Page 2 Section 3(a) of the Ethics Act provides: 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). Section 3(a) basically provides that a public official may not use his public office or confidential information to obtain a financial gain other than compensation as provided for by law for himself or a member of his immediate family. Under this provision, the Ethics Commission has determined that the use of office by a public official to obtain a gain or benefit for himself or a member of his immediate family which is not provided for in law constitutes a "financial gain other than compensation provided for by law." These determinations have been appealed to the Commonwealth Court of Pennsylvania which has affirmed the Orders of the Commission. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). See also Yocabet v. State Ethics Commission, Pa. Commw. , 531 A.2d 536 (1987). Thus, under this provision, a public official may not use his public position to secure any financial gain for himself or a member of his immediate family unless it is provided for by law. Domalakes Opinion, 85 -010. Section 2. Definitions. "Immediate family." A spouse residing in the person's household and minor dependent children. 65 P.S. 402. Since immediate family is defined to only include a spouse or minor dependent child, the provision of Section 3(a) would not include your mother. Therefore, under Section 3(a) of the Ethics Act and the definition of "immediate family ", there is no prohibition upon your voting or participating regarding the processing or approval of your mother's rehabilitation loan. Section 3(b) of the Ethics Act provides: 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, Ms. Joy A. Preston, Director February 24, 1988 Page 3 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). Section 3(b) of the Ethics Act must be referenced in order to provide a complete response to your inquiry. Under Section 3(b) of the Ethics Act cited above, which a public official must observe, a public official must neither offer nor accept anything of value on the understanding or with the intention that the public official's judgment would be influenced thereby. It is assumed such a situation does not exist here. This Section is referenced not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Although there is no prohibition under Section 3(a) of the Ethics Act, as previously noted, as to voting or participating regarding the processing or approval of your mother's rehabilitation loan, the Commission has found the appearance of a conflict of interest under Section 3(d) in cases where a public official has voted in favor of a relative who was not within the definition of "immediate family." See Modrovich Order, No. 585. The Commission has applied Section 3(d) of the Act to encompass the Preamble of the Ethics Act which relates to the intent and purpose of the Act: to strengthen the faith and confidence of the people in their government by assuring the public that the financial interests of the holders of public office present neither a conflict nor the appearance of a conflict with the public trust. In light of the foregoing, under Section 3(d) of the Ethics Act, you may not vote or participate in the activity in question so as to avoid an appearance of a conflict of interest. Lastly, 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. Conclusion: As a Community Development Director for Dunmore Borough, your are a public employee subject to the provisions of the State Ethics Act. Although your mother is not a member of your "immediate family" as that term is defined in the Ethics Act and although there is no prohibition under Section 3(a) of the Ethics Act, there is a prohibition upon the voting or participating for your mother regarding her rehabilitation loan under Section 3(d) of the Ethics Act and it is necessary for you to abstain so as to avoid the appearance of a conflict of interest. Lastly, the propriety of your proposed conduct has only been addressed under the Ethics Act. Ms. Joy A. Preston, Director February 24, 1988 Page 4 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 w i l l 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. erely, Vincent J Dopko General Counsel