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HomeMy WebLinkAbout86-555 SnyderSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 May 13, 1986 ADVICE OF COUNSEL Ms. Virgina A. Snyder 86 -555 Harrisburg Redevelopment Authority P.O. Rox 257 Harrisburg, Pennsylvania 17105 -2157 Re: Grant Program, Participation by Public Official /Employee Dear Ms. Snyder: This responds to your letter of April 21, 1986, in which you requested Advice from the State Ethics Commission. Issue: You ask whether employees of the Harrisburg Redevelopment Authority may participate in a Weatherization Program administered by the Authority. Facts: You serve as a Weatherization Specialist for the Harrisburg Redevelopment Authority. You advise that the Authority is currently administering a Weatherization Program through the Department of Community Affairs. You advise that an employee of the Authority has expressed an interest in participating in the program. The Department of Community Affairs has indicated no restrictions as to who may apply for this program. The particular employee involved serves as a warehouseman. His duties include maintaining all material and equipment, inventory, and recordkeeping for such materials. He does not exercise any functions or responsibilities in the administration, review, or approval of services provided in relation to the Weatherization Program. You advise that this employee meets all eligibility requirements for participation. You have asked whether the State Ethics Act presents any restrictions on this employee's participation in the 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 this employee's 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 this employee's conduct is subject to the requirements of that Act because we assume, for purposes of this response, that this employee is a "public employee" as that term is defined in the Ethics Act. See 65 P.S. 402. Ms. Vi rgi ni a A. Snyder May 13, 1986 Page 2 Under the Ethics Act, we must observe the stated purpose of the Act which is to strengthen the faith and confidence of people in 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 of Section 3(c) of the Ethics Act first. From the facts outlined above, it is not clear whether there will be any "contract" between this individual as a public employee and the Authority. 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 this employee is "associated" is the Authority. Thus, assuming, for purposes of this advice, that a contract would be made between the Authority and this employee 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 this employee and the governmental body with which he is associated: 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, we must next consider the other aspects of the propriety of this employee's 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, political subdivision, or governmental body is also available to public officials and /or employees of that agency or governmental body. We recognize 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. Ms. Virginia A. Snyder May 13, 1986 Page 3 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 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; Ms. Vi rgi ni a A. Snyder May 13, 1986 Page 4 3. played no role in the process of selecting and reviewing applicants or in awardi ng 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 this employee may participate in the Program, as outlined above, without resigning from his position or relinquishing his role as a public employee. This is especially true where, the employee appears to have met the criteria listed above at Numbers 1 -4. Under such circumstances, so long as the required abstentions discussed above are observed, he 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 this employee must observe, he must neither offer nor accept anything of value on the understanding or with the intention that his official judgment would be influenced thereby. We assume such a situation does not exist here. We make reference to this Section not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Ms. Virginia A. Snyder May 13, 1986 Page 5 Conclusion: The Ethics Act and the rulings of the Ethics Commission reveal no reason to preclude the warehouseman for the Redevelopment Authority from participating in this Program as outlined above. So long as his conduct conforms to the guidelines discussed above, he may participate in this Program. If these guidelines are met, he 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 crimi nal proceedi ng, 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. Si ohn J. . in Genera ounsel