Loading...
HomeMy WebLinkAbout89-543 CruverJames D. Cruver RD #2, Box 159 -B Laceyville, PA 18623 Dear Mr. Cruver: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 23, 1989 Section 3(a) of the Ethics Act provides: 89 -543 Re: Conflict of Interest, Public Official, Immediate Family, Mother, Rental Subsidies This responds to you letter of April 18, 1989, in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act presents any restriction upon a County Redevelopment /Housing Authority Member from purchasing a home in which his mother would reside when his mother would apply for rental subsidies. Facts: You state that you are a member of the Wyoming County Redevelopment Authority Board and serve without compensation but are not a member of the Wyoming County Housing Authority Board. You note that two of the five members of the Redevelopment Authority Board also serve on the Housing Authority Board. You then indicate that the projects, activities and services of both the Wyoming County Redevelopment and Housing Authorities are provided by the same administrative staff. After advising that you and your wife are considering purchasing a single family dwelling in which your 87 year old mother Mildred Cruver will reside, you ask whether it would be ethical for your mother to apply for and receive rental subsidies to live in this house which you are contemplating purchasing. Discussion: As a Board member for Wyoming County Redevelopment Authority Board, you are a "public official" as that term is defined in the Ethics Act and the regulations of this Commission. 65 P.S. S402; 51 Pa. Code S1.1. As such, you are subject to the provisions of the Ethics Act and the restrictions therein are applicable to you. James D. Cruver May 23, 1989 Page 2 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 or employee 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 or a business with which he is associated. 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 benefits for himself or a member of his immediate family which are not provided for by law. Domalakes, Opinion 85 -010; likewise, the receipt of private financial gain or benefit through use of office is not permitted under this section, Huff, Opinion 84 -015. Section 2. Definitions. "Immediate family." A spouse residing in the person's household and minor dependent children. 65 P.S. S402. Since immediate family is defined to only include a spouse or minor dependent child, the above definition 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 mother as to the receipt of rental subsidies. In this regard it is noted that your mother is not a public official or employee and therefore the Ethics Act would not impose restrictions upon her in this regard. See Yerusalim, Opinion 89- 003. James D. Cruver May 23, 1989 Page 3 Section 3(b) of the Ethics Act provides: (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 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 or employee must observe, a public official or employee must neither offer nor accept anything of value on the understanding or with the intention that his 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. Section 3. Restricted activities. (d) Other areas of possible conflict shall be addressed by the commission pursuant to paragraph (9) of Section 7. 65 P.S. 403(d). Under the above provision of law, the Ethics Commission, however, is also empowered to address other areas of possible conflict pursuant to Section 3(d). 65 P.S. §403(d). Fritzinaer, Opinion 80 -008; DeBenedictis, Opinion 86 -002. The parameters of the type of activity encompassed by this provision are generally reviewed in light of the preamble to the Ethics Act which enunciates the legislative intent of the Act. The intent and purpose of the Act is 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 or a conflict with the public trust. A public official or employee, pursuant to this provision, is to ensure that their personal financial interests present neither a conflict nor the appearance of a conflict with the public trust. 65 P.S. §401. Such a conflict may exist James D. Cruver May 23, 1989 Page 4 where an individual represents one or more adverse interests. Alfano, Opinion 80 -007; where an individual serves in positions that are incompatible or conflicting; Nelson, Opinion 85 -009, or where such an official or employee accepts compensation to which he is not entitled. Domalakes, Opinion supra. Although there is no prohibition under section 3(a) of the Ethics Act as previously noted as to the above activity, the Commission has determined under Section 3(d) that this type of activity creates the appearance of a conflict of interest where a public official uses his public office in favor of a relative who is not within the definition of "immediate family." Therefore, under Section 3(d) of the Ethics Act, you should not participate in any matter involving the entitlement of your mother to the rental subsidies, you should note your abstention of public record together with the reason for your abstention. 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 in that they do not involve an interpretation of the Ethics Act. Conclusion: As a Board member for Wyoming County Redevelopment Authority you are a public official subject to the provisions of the State Ethics Act. Your mother is not a member of your "immediate family" as that term is defined in the Ethics Act. Although there is no prohibition under Section 3(a) of the Ethics Act, under Section 3(d) of the Ethics Act, you may not use public office to participate in any matter involving the entitlement of your mother to the rental subsidies. Additionally, you must note your abstention of public record together with the reasons for your abstention. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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. such. This letter is a public record and will be made available as Finally, if you disagree with this Advice or if you have any James D. Cruver May 23, 1989 Page 5 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 52.12. cerely, incent 3". Dopko, General Counsel