HomeMy WebLinkAbout83-575 BalabanMr. William R. Balaban
Balaban & Balaban
Governor's Row
27 North Front Street
P.O. Box 1284
Harrisburg, PA 17108 -1284
Mallmg Address.
STATE ETHICS COMMISSION
P.O. BOX 1 179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
July 18, 1983
ADVICE OF COUNSEL
83 -575
RE: Community Block Grant Development Fund; City Employee; City Councilwoman
Dear Mr. Balaban:
This responds to your letter of June 15, 1983, in which you requested
advice from the State Ethics Commission on behalf of the City of Harrisburg.
Issue: You ask whether both a city employee and a city councilwoman could
receive Community Block Grant Development Funds (CBDG Funds) from the
Harrisburg Department of Community and Economic Development (Department)
without violating the State Ethics Act.
Facts: You write to the Ethics Commission on behalf of the City of Harrisburg
to request advice as to whether Patricia Ann Stewart and Harriet Braxton may
receive CBDG Funds without constituting a conflict or the appearance of a
conflict with the public trust. Each factual case will be dealt with
separately below.
A. Patricia Ann Stewart
Patricia Ann Stewart is a Clerk Typist for the Bureau of Codes
hereinafter, "Codes ", in the Department of Community and Economic Development
of the City of Harrisburg. Her position is ministerial in nature. The Bureau
of Codes is a separate Bureau within the Department, and its services are not
used in inspecting or administering the CBDG Concentrated Rehabilitation
Program. The Bureau is itself physically located on the fouth floor of the
City Government Center, while all rehabilitation functions are housed on the
Center's second floor.
Mrs. Stewart has owned her home to which these grant -funds would be
applied at 35 North Summit Street since December 6, 1979 and her income level
makes her eligible for the Concentrated Rehabilitation Program. You state
that in her function as a Clerk Typist for Codes, Mrs. Stewart had no
opportunity to participate in discussions with the Department with respect to
areas to be selected for rehabilitation or to influence the decisions as to
are as selected for rehabilitation.
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Mr. William R. Balaban
July 18, 1983
Page 2
You indicate that the Summit Rehabilitation Proposal was recommended by
the Summit Terrace Association, a neighborhood citizen group, through the
extensive of public hearing process held during the Spring, 1983. The
rehabilitation area's boundaries were definded at public hearings in February,
1983 and the specific properties to be considered for concentrated
rehabilitation were reviewed at April 20 and 21, 1983 public hearings. The
Summit Rehabilitation Proposal was subjected to additional public hearings on
May 16, 18, 19, and June 6, 1983. City Council is schgduled to approve
submission on this application for the Summit Concentrated Rehabilitation
project on June 28, 1983.
You believe that, in compliance with the guidelines set forth by the
Ethics Commission in its opinion in Kane, 83 -004, Patricia Ann Stewart's
request for CBDG Funds for rehabilitation for her home at 35 North Summit
Street, Harrisburg, should be granted because it does not conflict with the
State or local conflict of interest laws.
B. Harriet Braxton
Mrs. Harriet Braxton was appointed by the Mayor to fill a vacancy on the
Harrisburg City Council in October, 1982. The Community Development Block
Grant, which included funds for the rehabilitation of the block where Mrs.
Braxton has resided since 1954, was approved by City Council in August, 1982,
three months before Mrs. Braxton's appointment to the Council.
Mr, and Mrs. Braxton purchased their home at 2142 North Seventh Street in
Harrisburg on October 23, 1954. No family member was employed by the City at
the time of this property was acquired. You indicate that Mrs. Braxton's home
was included in areas designated to be rehabilitated in earlier federal grant
programs, however, her specific block never received these funds.
Mrs. Braxton's employment record with the City began in 1971 when she
held the position of Housing Inspector with the Department of Community and
Economic Development. Mrs. Braxton held this position 12 years before the
rehabilitation of her neighborhood began, and in her job as Housing Inspector
in 1971, she acquired no information and had no influence regarding the
selection of North Seventh Street, Harrisburg, for rehabilitation in 1983.
Mrs. Braxton's current income level makes her eligible for the Concentrated
Rehabilitation Program.
In light of the Ethics Commission Opinions in Kane, 83 -004, and Toohey,
83 -003, it is the City's position that Mrs. Braxton in violation of
local or State conflict of interest laws. In this light, you state that the
City would recommend that Harriet Braxton be permitted to receive CBDG Funds
because such receipt would not violate the Pennsylvania Conflict of Interest
Law.
Mr. William R. Balaban
July 18, 1983
Page 3
Discussion: As you are aware, the Ethics Act regulates the conduct of public
officials /employees. Thus, the threshold question is to determine whether
Stewart or Braxton are public officials /employees subject to the restrictions
of Section 3(a) or 3(c) of the Ethics Act. If they do not fall within the
definition of public officials /employees, they would be subject only to those
portions of the Ethics Act which regulate the conduct of "persons." See
Section 3(b) of the Act for example, 65 P.S. 403(b). The facts you provide as
to Stewart tend to indicate that she is not a public employee because of the
ministerial nature of her duties. The facts you provide as to Braxton
indicate that although she is appointed rather than an elected City
Councilmember, she is a public official.
Even if Stewart were a "public employee" and even though Stewart works in
the Codes Division of the Department of Community and Economic Development,
this does not, per se, disqualify her from participating in the CBDG
Rehabilitation Program administered by the Department. This is particularly
true where she may not, while employed by the Department, have been or may riot
now be within the definition of "public employee." As a Codes employee Mrs.
Stewart had neither the opportunity to participate in the rehabilitation area
selection discussions with the Department nor the ability to influence the
selection of the area for rehabilitation. Also, it is difficult to discern
that she had access to any confidential information whatsoever about the
rehabilitation program or that she had any role whatsoever in setting the
criteria by which the program is established or how program participants are
selected.
With regard to Mrs. Braxton, the fact that she is a "public official ",
similarly, does not generally and automatically disqualify her from
participating in programs which would otherwise be available to her as a
member of the general public. The fact that she was appointed to the City
Council in October, 1982, three months after the Council approved
rehabilitation at the block where Mrs. Braxton has residence since 1954,
indicate that Mrs. Braxton had no role in this decision. As to both persons,
their properties were purchased well prior to any decisions that
rehabilitation programs or funds would be available.
Thus, an individual public official or public employee such as Braxton or
Stewart could apply for funds, so long as they 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 acquired during her
holding public office to apply for or obtain such funds. See Kane, 83 -004;
Toohey, 83 -003. Additionally, there should be no use of office so as to
"mold" or "tailor the program to benefit the official or the employee. In
the present cses, under these facts it is apparent that neither Stewart nor
Mr. William R. Balaban
July 18, 1983
Page 4
Braxton had any opportunity to "so mold" this program in which they now seek
to participate. As to Braxton, however, we should note that because of
her - position on Council she should insure that public disclosure of the
application to participte in this program is made.
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 employee /official" is associated and his or her
governmental body must be made only after an "open and public process." As
previously discussed in Kane, 83 -004, we assume that the contract for
rehabilitation is between the contractor and the Department of Community and
Economic Development, with the applicant being the beneficiary of the
contract. Thus, there would be no contract between the public
employee /official and the Department or the City, and the open and public
process requirements of Section 3(c) would be inapplicable to the
Department - contractor situation.
We recognize the serious concerns you present where a public program,
funded with public monies and administered through a public agency or entity
is also available to employees of the agency that administers that program, or
is available to other public officials. We recognize the public concern and
criticism that may arise if a public employee /official of the City receives
benefits under that program. But, the Ethics Act was designed to restrict
activities where a conflict exist and to address situations where an
appearance of a conflict with the public trust arises or might arise. Where,
as we find here, the public employee and official:
1. played no role in establishing the program at issue as to the
structure or administration of the program; and
2. played no role in establishing or implementing the criteria by which
selections for program participation are made; and
3. plays no role in the actual selection process; and
4. are applying rehabilitation grant funds to the homes it which they
reside which they acquired prior to and outside of any association
that they have or had with the City of Harrisburg, we see no reason
to restrict employees or officials who might otherwise be eligible
for the program participating in such program.
Conclusion: Stewart and Braxton, so long as their conduct has and continues
to conform to the discussion above, may, under these circumstances, apply for
CBDG Funds and participate as recipients in the Rehabilitation Program without
violating the provisions of the Ethics Act.
Mr. William R. Balaban
July 18, 1983
Page 5
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. C ri:tianson
General Couns