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HomeMy WebLinkAbout84-635 FentonDear Councilwoman Fenton: Ms. Ann Fenton c/o David Hotchkiss, Esq. Culbertson, Weiss, Schetroma, and Schug 911 Diamond Park Meadville, PA 16335 December 14, 1984 ADVICE OF COUNSEL 84 -635 Re: Grant Program, Participation by Public Official /Employee This responds to your letter of your Solicitor of October 31, 1984, in which you requested Advice from the State Ethics Commission. Issue: You ask, whether you, in your position as member of the Borough Counsil in the Borough of Springsboro, hereinafter the Borough, you may participate in a grant program hereinafter, the Program administered by the Crawford County Redevelopment Authority, hereinafter the County Redevelopment Authority. Facts: Your solicitor on your behalf and on behalf of several members of Borough Council have asked that we review the above question. In this response we will use your status and factual presentation as being a "generic" one which can be applied, subsequently, by your solicitor to other similarily situated members of Borough Council. You indicate that the Pennsylvania Department of Community Affairs, hereinafter DCA, under its small communities program has awarded a substantial grant to the Borough for housing rehabilitation purposes. The Borough received substantial assistance from the County Redevelopment Authority in preparing and submitting its grant application. Early in this process the Borough entered into a contract with the County Redevelopment Authority whereby that Authority, if the grant were made, would administer the Program. The Borough received approval of its application and has indicated that the administration of this Program will be performed by the regular paid staff of the City of Meadville Redevelopment Authority, hereinafter the City Redevelopment Authority which has contracted with the County Redevelopment Authority to perform this function. Ms. Ann Fenton December 14, 1984 Page 2 At this point it should be noted that the standards for program administration are set by the regulations of DCA and funds are to be provided to eligible residents - homeowners to perform certain basic housing rehabilitation activities. Essentially, no repayment of the grants need occur while the recipient occupies the dwelling; however, the grant -funds awarded are to be recouped upon the sale or other disposal of the dwelling where the rehabilitation was performed. In addition to the fact that DCA sets the standards for the Program administration, the Borough Council has no power to set or alter criteria for Program participation which are also established by the regulations of DCA. In this whole process of evaluating applications for these funds and Program participation, the personnel of the County Redevelopment Authority are bound to adhere to regulations and policies as set forth in the grant and the requirements of DCA. Thus, Borough Council and the Council members, such as yourself, have no practical power or authority to influence or effect the administration of these grant funds. Several members of Borough Council have expressed and interest in participating in this Program and receiving housing rehabilitation funds. In this response we will also assume that the Borough Council members, such as yourself, who seek to participate in this Program can and will be required to meet the eligibility standards that are applicable to other Program applicants and recipients. Essentially, as your Counsel indicates, we will assume that you are not seeking any special or discriminatory treatment but "only seek permission to apply as an ordinary program recipient" for these housing rehabilitation grants. Finally, the DCA has indicated preliminarily that it would abide by an advisory opinion from the State Ethics Commission in determining whether a Council member, such as yourself, can properly participate in this housing rehabilitation Program. Discussion: 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 or we assume, for purposes of this response that you are a "public official" as that term is defined in the Ethics Act. See 65 P.S. 402. Ms. Ann Fenton December 14, 1984 Page 3 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 conflict nor the appearance of a conflict with the public trust. See Section 1 of the Ethics Act, 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 a governmental body must be made only after an "open and public process." The State Ethics Commission has interpreted this provision to apply and to require an "open and public process" when the particular public employee or official seeks to contract with the "governmental body" with which he is "associated.." See Bryan, 80 -014 and Lynch, 79 -047. The governmental body with which you are "associated" is the Borough. Of course, should there be any contract between you and the County or City Redevelopment Authorities with respect to this grant, Section 3(c) of the Ethics Act would be inapplicable, because you are not "associated" with those Authorities. However, we will address the applicability of Section 3(c) of the Ethics Act to this situation on the assumption that there may, in fact, be a contract of some sort between the Borough and yourself. Thus, assuming, for 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, if a contract in excess of $500 were to be made between yourself and the governmental body with which you are associated the following: 1. prior public notice of the contract possibility; 2. public disclosure of applications and contracts considered; and 3. public disclosure of the award of the contracts. 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. Ms. Ann Fenton December 14, 1984 Page 4 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, 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 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. However, the Opinions of the Ethics Commission indicate 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 Ms. Ann Fenton December 14, 1984 Page 5 Commission indicated that a public official or public employee or a business with which he is associated could participate in rehabilitation or grant programs 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; 2. played no role in establishing or implementing the criteria by which selections for program participation are to be or were made; 3. played no role in the process of selecting and reviewing applicants or in awarding grants or funds; 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. Furthermore, 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 public employee or official within the 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 who are applying for funds or seeking 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 the grant funds or the program benefits would be available to be applied for or applied to 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 distribution of the 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 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 public official. This is especially true where, as outlined above you appear to have met the criteria listed above at Numbers 1 -4. Under such Ms. Ann Fenton December 14, 1984 Page 6 circumstances, so long as the required abstentions discussed above are observed you may apply for and participate in the benefits associated with this Program. Finally, we must make reference 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. We assume such a situation does not exist here. 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 in this situation. 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, Sandra S. Chr tianson General Coun el