HomeMy WebLinkAbout86-569 CummingsMr. Michael Cummings, Councilman
Borough of Dunmore
400 South Blakely Street
Dunmore, PA 18512
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108-1470
TELEPHONE (717) 783 -1610
June 9, 1986
ADVICE OF COUNSEL
86 - 569
Re: Grant Program Participation; Relative of Borough Councilman
Dear Mr. Cummings:
This responds to your letter of April 28, 1986, wherein you requested the
advice of the State Ethics Commission.
Issue: Whether the father of a borough councilmember may participate in a
housing rehabilitation program.
Facts: You currently serve as a councilmemher in the Borough of Dunmore. You
have so served for the past six years. The borough has initiated a housing
rehabilitation program utilizing community development funds. This program
assists low income owners /occupants with home repairs. You advise that your
father is an applicant to participate in this program and meets all of the
income and other eligibility requirements. You have, therefore, requested the
advice of the State Ethics Commission as to whether youp father may
participate in this program within the purview of the State Ethics Act in view
of your position on the borough council. The current rehabilitation program
is in a nature of a deferred payment loan to eligible property owners. In
order to receive the deferred loan, the homeowner must meet two requirements
regarding income eligibility for the total household and geographic location
of the residence in a designated area. Income eligibility is based on the
Housing and Urban Development Section 8 Standards as determined by the United
States Department of Housing and Urban Development. An applicant must have an
income level of or below that set as low to moderate for Lackawanna County.
With relation to the second requirement, you advise that at the time the funds
were applied for by the borough, the municipality was required to maximize the
impact of the program by concentrating efforts in areas with a large number of
Mr. Michael Cummings
June 9, 1986
Page 2
low to moderate households, (at least 51% of the census track). During the
program years betweeen 1980 and 1985, rehabilitation was carried out in an
area with the largest percentage of low to moderate income residents in the
borough. When rehabilitation in this particular area was finished, the area
with the next largest concentration of low income persons was designated as
the next target area. This area was the only other area in the borough which
met the 51% low to moderate income benefit requirements. Your father is a
resident of this area. You advise that your father, thereafter, made
application to the Borough Department of Community Development to participate
in this program. Income verification was conducted by that office and he was
found to be well within the income requirements for the program. Applicants
for the program are selected on a first come first serve basis. No applicant
is taken out of turn according to the Director of the Department of Community
Development. The Director has also advised that the borough council has no
contact with the application process or selection. We have also been advised
that reports made on the program refer to applicants by number rather than by
name or address.
Discussion: Initially, it should be noted that under the State Ethics Act,
our jurisdiction is limited to questions arising under that law. Thus, we
cannot and do not, in this advice, address the propriety of or answer any
questions related to this situation in light of any other code, statute,
(federal or state), or regulation.
Generally, the Ethics Commission, in the past, has issued a number of
opinions and advices regarding a public official 's participation in grant
programs of the type set forth herein. See, Toohey, 83 -003; Balaban, 85 -004;
Coploff, 83 -005. These opinions set forth the guidelines applicable in such a
situation. With regard to this matter, we note that your father is not
serving as a borough official. Therefore, the opinions cited above would not
be applicable in this situation. Additionally, as your father is not a public
official or public employee, he is not generally within the jurisdiction of
the Ethics Commission and the Commission may not, therefore, prohibit him from
participating in this program.
The Commission, however, does have jurisdiction over you as a public
official of the borough. In this respect, you should be aware of certain
provisions of the Ethics Act that are applicable to you.
Generally, the State 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).
Mr. Michael Cummings
June 9, 1986
Page 3
Additionally, the Act defines member of one's immediate family as
follows:
Section 2. Definitions.
"Immedi ate family." A spouse residing i n the person's
household and minor dependent children. 65 P.S. 402.
As is clear from the foregoing definition, your father would not be a
member of your immediate family as set forth above. Therefore, Section 3(a)
would not prohibit any activity by you as a public official insofar as it
concerned your father. This, of course, assumes that you have received and
will receive no direct benefit from or through your father.
In addition to the foregoing, however, the Ethics Commission is also
empowered to address other areas of possible conflict pursuant to Section
3(d). 65 P.S. §403(d); Fritzinger, 80 -008; Yaw, 85 -011. The parameters of
the type of activity encompassed by this provision of the law are generally
reviewed in light of the preamble to the Ethics Act which enunciates the
legislative i ntent of the Act. A public official or public employee, pursuant
to this provision, is to ensure that thei r personal financi al interest
presents no conflict with the public trust. 65 P.S. §401. Such a conflict
may exist where an individual represents one or more adverse i nterests,
Alfano, 80 -007; Nelson, 85 -009.
In situations such as the one presented herein, the Commission has
determined that the definitional limitations applicable to Section 3(a) of the
State Ethics Act are not relevant to questions addressed under the above
provision of law. Leete, 82 -005. As such, the Commission has placed
restrictions upon various actions of public officials and employees when
acting upon matters that involve relatives outside of the previously cited
definition. O'Reilly, 83 -012; Lewis, 85 -558. See also, Macko, 85 -70 -A.
Thus, while your father may participate in the program, you, as a borough
official, may not and should not participate to any extent in the application
process or the granting of funds to him. Additionally, all of the records and
information pertaining to this process, insofar as they involve your father,
should be open for public inspection. Additionally, it is noted that under
certain circumstances where a relative of a public official or employee
participates in a grant program for which the public official or employee has
official responsibilities, the Commission has ruled that the official may have
to abstain from decisions regarding others who are also applying for the same
funds. Generally, this determination was made where there were limited funds
available for distribution and where only a few of the many applicants would
be securing approval. The Commission ruling was grounded upon the concept
that an official, under such circumstances, could effectively deny all the
applications, other than the one in which he was interested, thereby ensuring
Mr. Michael Cummings
June 9, 1986
Page 4
the availability of funds for the project in which he was interested.
Coploff, 83 -005. We reference to this Section not to imply any improper
motivation, but merely to supply a complete response to your question. We
will assume that this particular situation does not exist in relation to your
request. In any event, you are advised that as a public official, you must
abstain from participating in your father's application, and receipt of grant
participation funds.
Conclusion: There is no prohibition under the Ethics Act upon the father of a
borough councilmember participating in a grant rehabilitation program. The
borough councilmember must conform to the requirements of the State Ethics Act
as set forth above.
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.
Si nc
John J '•nti
Gen- al Counsel