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