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Home My WebLink About84-546 HazelbakerMr. Arthur Hazelbaker, President Fayette City Borough Council Fayette City Borough Building Fayette City, PA 15438 Dear Mr. Hazelbaker: Mailing Address. STATE ETHICS COMMISSION _3c PlAMNGG C�C.2xa HARRISBURG, PA woe 1 1 i7-0 TELEPHONE: (717) 783 -1610 April 5, 1984 ADVICE OF COUNSEL RE: Grant Program Participation; Borough Council President 84 -546 This responds to your letter of February 27, 1984, in which you requested advice from the State Ethics Commission. Issue: You ask whether you, the current President of the Fayette City Borough Council, may receive assistance under Fayette City's Small Communities Program housing rehabilitation program. Facts: You currently serve as President of the Fayette City Borough Council. You have been a member of Council for the last five years and have served as Council President for the last two years. You further indicate that this is an uncompensated position. Fayette City administers a Small Communities Program (SCP) grant, a component of which is a housing rehabilitation program. According to your request for advice, eligibility is apparently based upon income and family size. You indicate that you are currently disabled, have a limited income, and have several dependents. You further indicate that because of your limited available income, you cannot afford to make necessary improvements to your home. In light of your situation, you state that you are interested in receiving assistance under the SCP housing rehabilitation program administered by Fayette City. You are concerned that your position as President of the Fayette City Borough Council would prohibit you from receiving SCP aid. You have, therefore, requested advice from the State Ethics Commission concerning your eligibility to participate in Fayette City's SCP housing program. State Ethics Commission N 308 Finance Building • Harrisburg, Pennsylvania Mr. Arthur Hazelbaker, President April 5, 1984 Page 2 Discussion: Under the Ethics Act, we shoud note, that our jurisdiction is limited to rulings under the Ethics Act. Thus, we cannot and do not in this ruling, address the propriety of or your eligibility to participate in this program under any code, statute (federal or state), etc., other than the Ethics Act. You should seek the assistance of your solicitor to secure answers under other statutes or to decide how you must proceed to secure other answers. The Ethics Act, 65 P.S. 401 et seq., states that its purpose is to strengthen the faith and confidence of the people in their government by assuring that the financial interests of holders of or candidates for public office present neither°a conflict nor the appearance of a conflict with the public trust. There is no dispute that as Borough Council President, you are a "public official" as that term is defined in the Ethics Act, and as such, your conduct must conform to the requirements of the Act. At the outset, two of the specific provisions to be reviewed include Sections 3(a) and 3(b) of the Act. See 65 P.S. 403(a) and (b). These sections provide that no public official may use his public office or confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, his immediate family, or a business with which he is associated. In addition, these sections prohibit a public official or candidate for public office from receiving any thing of value on the understanding of his official conduct would be influenced thereby. Section 3(c) of the Ethics Act must also be reviewed. Section 3(c) states that any contract between a public employee or official and the governmental body with which he is associated must be made only after an "open and public process." You do not indicate whether the contract for rehabilitation involved in this case would be between you and contractor or you and Fayette City or between a contractor and Fayette City. However, simply assuming for purposes of this Advice, that the contract for rehabilitation will be between Fayette City and you as the public official - applicant, the open and public process requirements of Section 3(c) would be applicable and require: 1. prior public notice of the contract possibility; 2. public disclosure of applications considered; and 3. public disclosure of the award of such contracts. Mr. Arthur Hazelbaker, President April 5, 1984 Page 3 Assuming that &11 of the above guidelines have been, or will be met, we must next consider other aspects of the propriety of your receipt of SCP aid as President of the Fayette City Borough Council. We recognize the concern you express where a public program, funded with public monies and administered through a public agency or entity is also available to public officials and /or employees of that agency. We recognize the public concern and criticism that may arise if a public official of the City receives benefits under that program. However, while the Ethics Act was designed to restrict activity where a conflict of interest exist and to address situations where an appearance of a conflict with the public trust may arise. However, under the facts as you have presented them, you as a public official could participate in the rehabilitation program where you: 1. played no role in establishing the criteria under which the program at issue is 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 from program participation are made; 3. played no role in the process of selecting applicants or awarding grants; 4. would apply rehabilitation grant funds to the home in which you reside; and 5. used no confidential information acquired during your holding of public office to apply for or obtain such funds. Further, if the Borough City Council is in any way involved in administering the grant program or selecting who among the applicants will receive assistance, you as President of the Borough City Council must abstain from all discussion and /or votes on your application, and the reasons for your abstention must be placed on the public record See Toohey, 83 -003; Balaban, 83 -004, and Coploff /Hendricks, 83 -005. You should not be in a position to insure that grant funds are available to be applied to your own benefit. Thus, you should refrain from participating in Council's decisions regarding distribution of the limited funds available. Conclusion: The Ethics Commission rulings reveal no reason to preclude you from participating in the SCP housing rehabilitation program administered by Fayette City. So long as your conduct conforms to the guidelines discussed above, you may participate in Fayette City's SCP housing program, and you should encounter neither a conflict nor the appearance of a conflict with the public trust under the Ethics Act in doing so. Mr. Arthur Hazelbakcr, President April 5, 1984 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 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. CW /rdp Sincerely, Sandra S. ristianson General Counsel