HomeMy WebLinkAbout87-629 McClungMr. William McClung, Sr.
City of Pittsburgh
Department of City Planning
Public Safety Building
Pittsburgh, PA 15219
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PA 17120
TELEPHONE: (717) 783 -1610
November 17, 1987
ADVICE OF COUNSEL
87 -629
Re: Conflict of Interest, City Planning Commissioner, Urban Redevelopment
Authority Loan
Dear Ms. McClung:
This responds to the letter of October 23, 1987, in which you requested
advice from the State Ethics Commission.
Issue: You ask whether the Ethics Act imposes any restrictions upon you as a
City Planning Commissioner from participating in a Minority /Women Business
Fund Loan which is administered by the Urban Redevelopment Authority.
Facts: You state that you made applications to the Urban Redevelopment
Authority, hereinafter URA, Economic Development Department and was awarded,
pending final approval, a Minority /Women business Fund loan. In addition to
being a planning commissioner for the City of Pittsburgh, you state that you
are also a private entrepreneur and resident of the City of Pittsburgh. You
further state that information about the URA's Economic Development Loan
program is public knowledge and available to Pittsburgh residents or firms
located within the City and that you were given no special or preferential
treatment because of your position as a planning commissioner. It is further
stated by you that the interest rate, term and other loan particulars are the
same as for any other business loan applicant. You further state that the
Minority /Women Business Fund URA loans do not come before the planning
commission which is separate from the URA and not involved in any decision
making processes of the URA. It is further stated by you that if, for any
reason, the loan would come before the planning commission, you would refrain
from participating in any deliberations and abstain from voting.
Mr. William McClung, Sr.
November 17, 1987
Page 2
Based upon the usiness Fundsl request advice as
URA would t any of the
of
the
a Minority /Women Bu
provisions of the State Ethics Act.
Discussion: As a planning commissioner of the City of Pittsburgh you are a
"public official" subject to the provisions of the Ethics Act.
Section 3(a) of the Ethics Act provides:
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).
Under this provision, the Ethics Commission has determined that the use
of his office by a public official to obtain a gain or benefit for himself
which is not provided for in law constitutes a financial gain other than
compensation provided for by law. See McCutcheon v. State Ethics Commission,
77 Pa. Commw. 529 (1983). However, Section 3(a) of the Ethics act would not
prohibit you as a planning commissioner from participating in the
Minority /Women Business Fund Loan program which is administered by the URA.
It is further provided by Section 3(b) of the Ethics Act:
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).
Mr. William McClung, Sr.
November 17, 1987
Page 3
Specifically, the Ethics Act provides that no public official may use his
public office or confidential information received through his holding public
office to obtain financial gain for himself or a business with which he is
associated and no public official may receive anything of value on the
understanding that his official conduct will be influenced thereby. It is
assumed that such a situation does not exist here. Reference is made 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.
Section 3(c) of the Ethics Act provides:
Section 3. Restricted activities.
(c) No public official or public employee or a member of
his immediate family or any business in which the person
or a member of the person's immediate family is a
director, officer, owner or holder of stock exceeding 5%
of the equity at fair market value of the business shall
enter into any contract valued at $500 or more with a
governmental body unless the contract has been awarded
through an open and public process, including prior public
notice and subsequent public disclosure of all proposals
considered and contracts awarded. Any contract made in
violation of this subsection shall be voidable by a court
of competent jurisdiction if the suit is commenced within
90 days of making of the contract. 65 P.S. 403(c).
In the context of this particular provision of the Ethics Act, it is
necessary to identify the "governmental body" with which you are associated.
The Ethics Commission has previously ruled that the "governmental body" with
which an individual may be deemed to have been associated during his tenure of
public office extends to those entities where he had influence,
responsibility, supervision or control. See Ewing, 79 -010, See also Kury v.
Commonwealth of Pennsylvania State Ethics Commission, 435 A.2d 940 (1981).
In the instant situation, your governmental body would be the planning
commission but would not include the URA. Therefore, Section 3(c) of the
Ethics Act would not be applicable in this instant situation since your loan
application is not before the planning commission which is your governmental
body but is with the URA which is not your governmental body.
Lastly, reference must be made to Section 3(d) of the Ethics Act which
allows the Commission to review other areas of conflicts of interests.
Generally, the types of activities encompassed by this particular provision
are generally determined through a review of the intent of the State Ethics
Mr. William McClung, Sr.
November 17, 1987
Page 4
Act. Generally, the State Ethics Act was promulgated in order to ensure the
public that the interests of their officials do not conflict with the public
trust or create the appearance of a conflict of interest. Thus, if any matter
came before the planning commission relating to the URA's Economic Development
Loan program, you are advised that you may not participate or vote in those
matters. Furthermore, your abstention would have to be publicly noted as well
as the reason for your abstention.
Lastly, this Commission has addressed your question only under the Ethics
Act; it has not addressed the applicability of any other statute, code,
ordinance, regulation, or other code of conduct other than the Ethics Act.
Conclusion: As a Planning Commission member, you are a public official
subject to the provisions of the Ethics Act. Under the facts and
circumstances as outlined above, the Ethics Act does not prohibit you from
participating in the URA's Economic Development Department Minority /Women
Busiess Fund loan program. In the event that any matter concerning the URA
loan program would come before the planning commission, you are advised that
you may not participate nor vote on those matters and that you must note your
abstention publicly and the reason for your abstention.
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.
Sincerely,
Vi ncent . Dopko
General Counsel