HomeMy WebLinkAbout84-632 KuropatskyMr. Victor Kuropatsky
c/o Charles M. Miller, Esq.
Rubright, Domalakes , Troy and Miller
Law Building
P.O. Box 9
Frackville, PA 17931 -0009
State Ethics Commission
308 Finance Building
P. 0. Box 11470
Harrisburg, Pa. 17108 -1470
December 10, 1984
ADVICE OF COUNSEL
84 -632
Re: Grant Program, Participation by Public Official /Employee
Dear Kuropatsky:
This responds to your letter of November 9, 1984, which you requested
advice from the State Ethics Commission.
Issue: You ask, whether you, in your position as Mayor of the Borough of
Gilberton may participate in a grant program administered by the Borough of
Gilberton, hereinafter the Borough.
Facts: The solicitor of the Borough has asked the above question on your
behalf. He indicates that you were appointed as Mayor of the Borough to a
vacancy created when the former Mayor was elected to Borough Council. You
apparently meet all the income guidelines for participation in a Department of
Community Affairs Small Communities, Community Block Grant Program,
hereinafter, the Program which was awarded recently to the Borough and is
administered by the Borough.
However, as Mayor you have not voted on the acceptance of the Program by
the Borough and you have no input into establishing guidelines for
eligiblity for the Program. Essentially, eligibility determinations are made
by a Grant Administrator who has been retained by the management company
that the Borough retained to manage the Program in accordance with the
requirements of the Department of Community Affairs. However, your personal
residence may be eligible for and you qualify for participation in this
Program. Your solicitor has opined that under the Borough Code you, as Mayor
may participate as a grantee in the Program without resigning your office.
However, he seeks our further confirmation of any conflict or possibility of a
conflict under the Ethics Act.
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Mr. Victor Kuropatsky
December 10, 1984
Page 2
f)iscussion: 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), regulations, etc. other than the Ethics Act. However, under the Ethics
Act we may provide a ruling because your conduct is subject to the
requirements of that Act because you are a "public official" as that term is
defined in the Ethics Act. See 65 P.S. 402.
Under 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 conlict nor the appearance of a
conflict with the public trust. See Section 1, 65 P.S. 401. There are
specific provisions of the Ethics Act which must be reviewed in this
situation. Those provisions will be discussed more fully below. The Sections
of the Ethics Act which will be discussed are Sections 3(a), (b) and (c) of
the Ethics Act, 65 P.S. 403 (a), (b) and (c). respectively.
We will address the provisions in Section 3(c) of the Ethics Act first.
From the facts outlined above it is not clear whether there will be any
"contract" between you as a public official and the Borough. However, if this
were to occur the provisions of Section 3(c) of the Ethics Act would apply and
require that any contract in excess of $500 between a public employee or
official and the governmental body with which he is associated must be made
only after a "open and public process." Thus, assuming, for the purposes of
this advice, that a contract would be made between the Borough and yourself
pursuant to the provisions of this Program, Section 3(c) of the Ethics Act
would be applicable. If Section 3(c) of the Ethics Act is applicable, it
would require the following to be undertaken if a contract in excess of $500
were to be made between yourself and the governmental body with which you are
associated:
1. prior public notice of the contract possibility must be given;
2. public disclosure of applications and contracts considered must be
made; and
3. public disclosure of the award of the contracts must be made.
Mr. Victor Kuropatsky
necember 10, 1984
Page 3
Assuming that all of the guidelines as to an open and public process
mentioned above have been or will be met, if Section 3(c) of the Ethics Act is
applicable to your situation, we must next consider the other aspects of the
propriety of your proposed 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, or 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).
Under these Sections of the Ethics Act and the Opinions of the Ethics
Commission it is clear that, while recognizing the concerns expressed above,
the Commission has concluded that the Ethics Act was primarily designed to
restrict the activity of a public employee or official where a conflict of
interests exists and to address situations where the appearance of a conflict
with the public trust may arise. Further, the Opinions of the Ethics
Mr. Victor Kuropatsky
December 10, 1984
Page 4
Commission indicates 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 indicated that a public official or
public employee or a business with which he is associated could participate in
a rehabilitation program 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; and
2. played no role in establishing or implementing the criteria by which
selections for program particpation are to be or were made; and
3. played no role in the process of selecting and reviewing applicants
or in awarding grants or funds; and
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.
However, 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 or selecting who, among the applicants
should receive assistance or funds, the employee or official within that
governmental body who is making an application to participate in such a
program or to obtain such funds, must abstain from all discussions, votes or
recommendations on the applications or programs 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 seeking funds or 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 that
grant funds or the program benefits would be available to be applied for or
available 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 both distribution of these
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 of these principles to this case and particular circumstances.
Essentially, we conclude that you may participate in the Program as outlined
above without resigning from your position or relinquishing your role as a
Mr. Victor Kuropatsky
December 10, 1984
Page 5
public official. This is especially true where, as outlined above you appear
to have met the criteria listed above Numbers 1 -4 above. Under such
circumstances, so long as the required abstentions discussed above are
observed you may apply for and particpate in the benefits associated with this
Program.
Finally, we must make reference to and refer 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, which you must observe, you must
neither offer nor accept anything of value on the understanding or with the
intention that your official judgment would be influenced thereby. Again, 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.
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.
SSC /sfd
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.
Sincerely, ! Q
Sandra S. Christianson
General Counsel