HomeMy WebLinkAbout86-571 KillianJohn 0.: Killian, Esquire
PHEAA
218 Pine Street
P.O. Box 886
Harrisburg, PA 17108 -0886
Dear Mr. Killian:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
June 17, 1986
ADVICE OF COUNSEL
86 - 571
Re: Conflict of Interest, PHEAA Member, Participation in Purchase of
Building, Tenant in Building
This responds to your letter of May 29, 1986, wherein you requested the
advice of the State Ethics Commission.
Issue: Whether the Ethics Act places any prohibition upon a member of the
Pennsylvania Higher Educational Assistance Agency's participation in a
decision to purchase an apartment complex when that member is a tenant in the
complex.
Facts: On behalf of a member of the board of directors of the Pennsylvania
Higher Education Assistance Agency, you have requested the advice of the State
Ethics Commission regarding a possible conflict of interest. The member of
the board is an elected representative in the House of Representatives. In
this capacity, he was appointed by the Speaker of the Pennsylvania House of
Representatives to serve as a member of the hoard of directors of the
Pennsylvania Higher Education Assistance Agency, hereinafter PHEAA. You
advise that PHEAA is currently a tenant of the Towne House Building and the
agency holds an option to purchase that property. The state representative,
who is a member of PHEAA, is also a tenant of the Towne House. This
individual currently has a one year lease on an apartment in that building.
You advise that as a member of PHEAA, this individual may be called upon to
vote on whether the agency should exercise its option to purchase the
building. Rased upon the foregoing circumstances, you have requested the
advice of the State Ethics Commission.
John D. Killian, Esquire
June 17, 1986
Page 2
Discussion: As an elected member of the Pennsylvania House of
Representatives, and as a member of the board of directors of PHEAA, the
individual involved is clearly a public official as that term is defined in
the State Ethics Act. 65 P.S. §402. As such, his conduct must be in accord
with the requirements of that law.
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).
Within the above provision of law, a public official may not use his public
position in order to obtain any financial gain other than the compensation
that is provided for by law. Additionally, a public official may not use
confidential information obtained through his position for similar purposes.
This Commission, on various occasions, has outlined the parameters of the type
of activities which this provision of law would encompass. Generally, an
official may not participate in any matter wherein his activities, as a public
official, would result in him obtaining some type of financial gain. See,
Welz, 86 -001.
In the instant situation, it does not appear as though the individual
involved in this situation would be obtaining any type of benefit from
participating in the agency's decision to purchase the Towne House complex.
That complex consists of a substantial number of rental units and the
individual involved herein, owns but one of those units. He is the current
holder of a lease and the mere fact that the agency on which he serves, may
purchase that building, would not appear to be affecting his position as a
tenant in any way. From a review of tb facts, as outlined in your letter, it
does not appear as though the particular individual involved in this situation
would be obtaining any type of financial gain either direct or indirect if he
were to participate in the agency's decision to purchase the Towne House
complex.
The Ethics Act also provides that this Commission may address other areas
of possible conflicts. 65 P.S. §403(d). The parameters of the types of
activities encompassed by this provision of law are generally determined by
reviewing the purpose and intent of the Act as set forth in Section 1 thereof.
65 P.S. §401. Generally, the Act was promulgated in order to ensure that the
John D. Killian, Esquire
June 17, 1986
Page 3
financial interests of public officials do not conflict with the public trust.
See, Fritzinger, 80 -008, Domalakes, 85 -010, Nelson, 85 -008. While the
Commission cannot envision each and every type of conflict of i nterest that
may be occasioned by a particular factual situation, it is advised that the
advice set forth herein relates only to the issue of whether this particular
individual may participate in the agency's decision to
purchase the complex. In the event that other situations develop, which
relate to such issues as management of the complex or landlord tenant
relations, then the additional advice of this Commission may be necessary.
Conclusion: The State Ethics Act places no prohibition upon a member of the
Pennsylvania Higher Education Assistance Agency participating in the agency's
decision to purchase an apartment complex in which he is a tenant. The public
official would apparently receive no financial or other benefit from the
agency's decision to purchase the complex. The advice set forth herein
relates only to the question specifically addressed and does not relate to
other questions which may develop after the agency obtains ownership of the
buildi rig.
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.
ohn J. i
Gener Counsel