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HomeMy WebLinkAbout83-562 McCoyMr. Donald B. McCoy, Solicitor McCoy & Auchinleck Suite 222 Newtown Commons Plaza Newtown - Yardley Road Newtown, PA 18940 Mailing Address' STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 June 17, 1983 ADVICE OF COUNSEL 83 - 562 RE: Renewal Project; CDBG Funds; Mayor Participating Dear Mr. McCoy: This responds to your letter of May 6, 1983, in which you, as Solicitor for the Redevelopment Authority of Bucks County, requested advice from the State Ethics Commission. Issue: You ask whether a conflict of interest exists when the incumbent Mayor of Morrisville owns legal interest In several buildings scheduled for renovation under a State funded Borough of Morrisville Renewal Project. Facts: The Redevelopment Authority of Bucks County is about to undertake a central business district to renewal project in the Borough of Morrisville, County of Bucks, utilizing Community Development Block Grant Funds (hereinafter CDBG Funds). The first phase of this project will include the development of the parking area and street improvements along with renovation of several buildings located on the key block of East Bridge Street. These buildings contain commercial space on the first floor and rental apartment on the second floor. The Authority intends to use CDBG Funds to assist the owners of these buildings to renovate the residential units for rental to lower- income persons. Financial assistance, if any, would be limited to the minimum amount necessary to make the renovation financially feasible, based on an analysis of costs and income. The Mayor of Morrisville, Mr. Lee T. Rockafellow, owns legal interest in several of the buildings scheduled for renovation within the project area. You are concerned that such ownership constitutes a conflict of interest violative of the State Ethics Act, and you have requested advice from the State Ethics Commission in this regard. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. Donald B. McCoy, Solicitor June 17, 1983 Page 2 Discussion: Initially, the Ethics Commission notes that its jurisdiction is strictly limited by the Ethics Act, 65 P.S. 401 et seq., and, therefore, this Advice discusses only Mr. Rockafellow's duties and obligations under the Act in relation to the questions presented. As the incumbent Mayor of Morrisville, Mr. Rockafellow is a "public official" as defined by the Ethics Act. 65 P.S. 402. As a public official, Mr. Rockafellow must insure that his conduct conforms to the requirements of the Act and presents neither a conflict nor the appearance of a conflict with the public trust. The Ethics Act mandates that no public official may use his public office to obtain financial gain for himself, a member of his immediate family, or a business with which he is associated to an extent other than the compensation allowed by law. See Section 3(a) of the Ethics Act, 65 P.S. 402(a). The fact that an individual is a "public official ", however, does not generally or automatically disqualify him from participating in programs which would otherwise be available to him as a member of the general public. Section 3(a) of the Ethics Act does, however, require that if and when a public official is in a position to tailor the benefit program to specifically benefit himself or to influence the award of a grant_to himself, a business with which he is associated, or a member of his immediate family, he should in all cases, abstain from participating in the decision - making process relating to such. See Toohey, 83 -003 and Kane, 83 -004. Thus, Mr. Rockafellow, as Mayor of the Borough of Morrisville, would not be precluded from participating in the renewal project to the extent of his interest in the building scheduled for renovation, so long as he played no role in deciding who would get the funds, establishing the criteria by which the program itself was to be operated and /or criteria by which applications would be reviewed or actually granted, and used no confidential information required during his holding of public office to apply for or obtain such funding. Additionally, there should be no use of office so as to "mold" or "tailor" the program to benefit the official. See also Coploff, 83 -005. In the present case, whether or not the standards of the program conform to pre - established requirements, it is clear that Mr. Rockafellow, must remove himself from making any decisions (including discussions) on the distribution of the limited funds available. If Mr. Rockafellow could effectively act to deny all applications for financial assistance other than those in which he, himself, has an interest, there by making funds available for his own projects, the public perception of impartiality would indoubtedly be impaired. See Reisinger, 82- 146 -C. Also,` in the same vein, Mr. Rockafellow, as either an applicant or interest- holder, should insure the widest possible dissemination of the fact that he is interested in the funding distribution. Mr. Donald B. McCoy, Solicitor June 17, 1983 - =1_ Page 3 Also, the reasons for abstention as set forth above must be placed on the public record, and the public must be allowed to comment on the distribution procedure. Section 3(c) of the Ethics Act must also be reviewed. Section 3(c) states that any contract between the governmental body with which the individual "public official" is associated and his or her governmental cb it must be made only after an "open and public process." er is not clear whether in this process of funding a contract will exist between the Redevelopment Authority and the Borough, the Redevelopment Authority and the individual building owners, or the Borough and the individual building owners. Assuming, that purposes of this advice, that a contract would indeed exist between the Borough, that is, the "governmental body" with which Mr. Rockafellow is "associated ", and the individual building owners (including Mr. Rockafellow), Section 3(c) requirements of an open and public process must be observed. The Commission has found the open and public process to include the following elements: 1. prior public notice; and, 2. public disclosure of all proposals considered; and, 3. public disclosure of the award of the contract. If these standards, as well as the Section 3(a) standards delineated above, are complied with, the Ethics Commission sees no reason to exclude the buildings in which Mr. Rockafellow has ownership interest from the renewal project. In the event that any funding contract exists not between the Borough and the individual building owners, but between the Redevelopment Authority and the Borough, or the Redevelopment Authority and the individual building owners, the Section 3(c) open and public process requirements are inapplicable because the contract would not exist between the business with which Mr. Rockafellow is associated and the governmental body with which he is associated. Conclusion: Where Mr. Rockafellow: 1) played no role in establishing the program at issue as to the structure or administration of the program; or 2) played no role in establishing or implementing the criteria by which selections for program, participations are made; or 3) played no role in the actual selection process; and 4) the Section 3(c) open and public requirements are complied with if necessary; Mr. Donald B. McCoy, Solicitor June 17, 1983 = Page 4 the Commission sees no reason to exclude the buildings in which Mr. Rockafellow has ownership interest from the renewal project. If all of the guidelines, as developed above, are complied with in good faith, no conflict or appearance of a conflict with the public trust should occur, and Mr. Rockafellow's conduct and participation in this program will fall within the bounds of the Ethics Act. It should also be noted that other employees of the Borough may not per se be precluded from participating in publicly funded programs operated by the Borough, but such persons cannot assume that such participation is acceptable under the Ethics Act on the basis of this ruling. Individual questions may be raised and addressed as needed. 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 requester 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 f o r ma l in Opinion from the Commission will be issued. Any such appeal writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. CW /rdp Si cerely, ndra S. General Couns btheCIVA071 anson