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HomeMy WebLinkAbout83-591 KnappMs. Stephanie C. Knapp Executive Director Redevelopment Authority City of Uniontown 2nd Floor, City Hall 20 N. Gallatin Avenue Uniontown, PA 15401 Dear Ms. Knapp: Mailing Address. STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 September 8, 1983 ADVICE OF COUNSEL RE: Board Members, Participation in Programs 83 -591 This responds to your letter of August 24, 1983, in which you, as Executive Director of a Redevelopment Authority and on behalf of Mr. Alvin S. Mundel, requested advice from the State Ethics Commission. Issue: You ask whether Mr. Mundel, as Board member of the Redevelopment Authority of the City of Uniontown, may participate in programs sponsored by that Authority. Facts: The Redevelopment Authority of the City of Uniontown, hereinafter, the Authority, intends to enter into a revitalization contract between the Authority and the State Department of Community Affairs. This program or contract is in connection with Facade Program and the design element thereof. The contract for this project was executed on May 6, 1983. On May 16, 1983, Alvin S. Mundel was appointed by City Council Resolution No. 100 to fill the unexpired term of a recently deceased member of the Board of Directors of the Authority. Mr. Mundel now serves as Assistant Secretary- Treasurer for the Board. It should be noted that all Board members, including Mr. Mundel, serve on the Authority without financial compensation. Mr. Mundel owns a property at 25 Morgantown Street, a key location in the design element of the Facade Improvement Program noted above. Mr. Mundel had intended to participate in the program prior to his appointment to the Board and had submitted a proposal for the inclusion of his property in this program prior to such appointment. His property was included in the target area for which the application for the Facade Program was made by the Authority in advance of Mr. Mundel's appointment. It is also clear that Mr. Mundel had no role in setting the standards applicable to the selection process for inclusion within this program or in deciding to include this particular property within the target area. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Ms. Stephanie C. Knapp September 8, 1983 Page 2 Finally, it should be noted that the property owned by Mr. Mundel at 25 Morgantown Street has been in the Mundel family since 1946 and was transferred to Alvin S. Mundel and Shirley K. Mundel, his wife, on January 1, 1969; nearly 14 years before the Facade Program was even considered. You have indicated that Mr. Mundel, in order to comply with the requirements of the Department of Community Affairs, intends to, on September 6, 1983, make a public, written statement, of his interest in this property and the fact that this property will be considered within the target area and the contract described above. However, you seek further advice as to whether there are any restrictions or requirements under the Ethics Act upon Mr. Mundel's participation in this Program. Discussion: Initially we note that this Advice, in response to your request, addresses the questions presented under the Ethics Act only because the Ethics Commission has jurisdiction to render determinations onlyas to any person's duties or obligations under the Ethics Act. Thus, this Advice does not address and should not be construed to be a ruling under any other conflict of interest requirements or regulations of any state or federal laws other than the Ethics Act. Second, there is some question as to whether or not an individual who is appointed and not compensated as is Mr. Mundel, could be considered a "public official" within the current definition of that term as contained in the Ethics Act. See 65 P.S. 402. Within this definition there is currently an exclusion for those persons who are appointed to their positions and are not compensated, other than for reimbursement for actual expenses. While the ruling of the Supreme Court in Snider v. State Ethics Commission, 436 A.2d 593 (1981), may have cast some doubt upon this exclusion contained in the definition of "public official ", the State Ethics Commission has not interpreted this ruling, to date, to require non - compensated and appointed persons such as members of the Authority to be considered "public officials" subject to the provisions of the Ethics Act. Thus, it is not appropriate to apply the provisions of the Ethics Act to the conduct of Mr. Mundel, in general, as he does not clearly fall within the definition of the term "public official" whose conduct would be subject to regulation under the Ethics Act. It should be noted that even if Mr. Mundel were to be a "public official" and even if he were to make a contract under the Facade Program between himself and the Authority (the governmental body with which he is associted) or to otherwise participate in this Facade Program, the Ethics Commission has previously concluded that the mere fact that an individual is a member of a governmental body does not necessarily Ms. Stephanie C. Knapp September 8, 1983 Page 3 preclude him from participating in programs which might otherwise be available to him as a member of the general public. See Toohey, 83 -003 and Coploff, 83 -005. In these cases, however, the Commission expressed a concern that a public official should not be 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. In the present case, it is clear that Mr. Mundel had no role in tailoring the program or in setting standards by which program- application would be processed or decided and, therefore, this element of concern has already been addressed. However, the Commission has also indicated in these decisions that a person on a public board who is a "public official" should in all cases abstain from participating in the decision - making process related to his own application. Essentially, any public official can apply for such funds so long as he has 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 he used no confidential information acquired during the holding of his public office to apply for or to obtain such funds. Thus, if Mr. Mundel was to be considered a "public official" he could nevertheless participate so long as these guidelines were followed. One additional item has caused concern to the Commission in these cases, and that is a situation wherein participation by the public official in denying other applications, a public official is also a grant - applicant effectively insures the availability of funds for his own application. If such situations were to arise, it would be advisable for any "public official" or if Mr. Mundel wishes to abide by these guidelines even if he may not be assumed to be a "public official ", to abstain from any decisions regarding the distribution of the limited funds available under this particular program wherein he is an applicant. Finally, as you indicate Mr. Mundel will do on September 6, 1983, any applicant who is also "public official" should disclose this fact and disseminate information as to the application he has made and indicate the nature of any abstensions which will be undertaken to remove any appearance of any conflict with respect to such application. Ms. Stephanie C. Knapp September 8, 1983 Page 4 Conclusion: Mr. Mundel, as a non - compensated appointed member of the Authority, is not to be considered a "public official" at this time, whose actions would be subject to regulation by the Ethics Act. Therefore, the Ethics Act would place no restrictions upon the application of Mr. Mundel for participation in the program outlined above. However, even if Mr. Mundel were a "public official" subject to regulation by the Ethics Act, decisions of the Ethics Commission indicate that a governmental official is not necessarily precluded from participation in programs for which he may otherwise be eligible as a member of the public. In such circumstances, so long as the guidelines outlined above are met, the Commission has previously concluded that "public officials" may participate in such programs. If Mr. Mundel wish to abide by the above - referenced guidelines which would be applicable to "public officials" with respect to participation in such governmental programs, he would avoid any conflict of interest or an appearance of a conflict of interest under the Ethics Act, if same were applicable. 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. SSC /rdp cc: Carol Cocheras Shirley M. Dennis, Secretary Department of Community Affairs Sincerely, Sandra S. Christianson General Counsel