HomeMy WebLinkAbout87-603 MerlinoMs. Jan Merlino
R. D. #1, Sixth Avenue
Sutersville, PA 15083
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PA 17120
TELEPHONE: (717) 783 -1610
August 11, 1987
ADVICE OF COUNSEL
87 - 603
Re: Grant Program, Participation by Public Official /Employee
Dear Ms. Merlino:
This responds to your letter of July 22, 1987, in which you requested
Advice from the State Ethics Commission.
Issue: You ask, whether you, in your position as President of Borough Council
may participate in a grant program, hereinafter the Program, administered
by the Westmoreland County Redevelopment Authority, hereinafter the
Authority.
Facts: You currently serve as President of the Borough Council of Sutersville
for which you receive no salary. The duties of your office consist of
chairing the monthly council meetings, cosigning borough checks, and directing
minor matters related to borough business. All major matters, including
spending go through borough council at an open and public meeting.
The Authority has a blight control program and has allotted the Borough
of Sutersville $10,000 for this program with a maximum allotment on an
individual basis between $2,000/$3,000. The borough has a population of 863
people and you indicate that you are unaware of any property other than your
own which would qualify for the program. You state that the borough has
nothing to do with the program other than the filing of the application. You
ask whether, in your position as President of Council, you may apply for the
county sponsored blight control program. You note that you would abstain from
voting on the matter of your application for the program grant.
Ms. Jan Merlino
August 11, 1987
Page 2
Discussion: Initially, under the Ethics Act, the Commission's jurisdiction is
limited to rulings under the Ethics Act. In this Advice, the propriety of or
the answer to any questions related to the propriety of your conduct in light
of any code, statute (federal or state), regulations, etc. other than the
Ethics Act cannot be addressed. However, under the Ethics Act, a ruling may
be provided because your conduct is subject to the requirements of that Act
because you are a "public official" as that term is defined in the Ethics Act.
See 65 P.S. 402.
Under the Ethics Act, the stated purpose of that Act 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.
First the provisions in Section 3(c) of the Ethics Act will be addressed.
From the facts outlined above, it is not clear whether there will be any
"contract" between you as a public official 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 you are "associated" is the
Borough Council.
Thus, assuming, for purposes of this advice, that a contract would be
made between the Authority and yourself 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 yourself
and the governmental body with which you are 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.
Ms. Jan Merlino
August 11, 1987
Page 3
Assuming that all of the guidelines as to an open and public process
mentioned above have been or will be met, if Section 3(c) of the Ethics Act is
applicable to your situation, the other aspects of the propriety of your
proposed conduct under other provisions of the Ethics Act must be considered.
In this review, 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 is recognized by the Commission. 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 is also noted. Thus, this conduct must be reviewed in light of Section
3(a) of the Ethics Act and Section 3(b) of the Ethics Act.
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, this question will be reviewed 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
Ms. Jan Merlino
August 11, 1987
Page 4
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;
3. played no role in the process of selecting and reviewing applicants
or in awarding 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.
Ms. Jan Merlino
August 11, 1987
Page 5
Based upon the facts, as outlined above, the above principles must be
applied to this case and particular circumstances. Essentially, you may
participate in the Program, as outlined above, without resigning from your
position or relinquishing your role as a public official. This is especially
true where, as outlined above you appear to have met the criteria listed above
at Numbers 1 -4. Under such circumstances, so long as the required abstentions
discussed above are observed, you may apply for and participate in the
benefits associated with this Program.
Finally, Section 3(b) of the Ethics Act must be referred in order to
provide a complete response to your inquiry. Under Section 3(b) of the Ethics
Act cited above, which you must observe, you must neither offer nor accept
anything of value on the understanding or with the intention that your
official judgment would be influenced thereby. It is assumed such a situation
does not exist here. The reference to this Section is added not to indicate
that any such activity has been or will be undertaken but in an effort to
prcvide a complete response to your inquiry.
Conclusion: The Ethics Act and the rulings of the Ethics Commission reveal no
reason to preclude you from participating in this Program as outlined above.
So long as your conduct conforms to the guidelines discussed above, you may
participate in this Program. If these guidelines are met, you 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 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.
cerely,
Vincent J. Dopko
General Counsel