HomeMy WebLinkAbout88-507 PerkinsKenneth D. Perkins, Esquire
6 West Diamond Street
Butler, PA 16001
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PA 17120
TELEPHONE: (717) 783 -1610
February 8, 1988
ADVICE OF COUNSEL
Re: Grant Program, Participation by Public Official /Employee
Dear Mr. Perkins:
88 -507
This responds to your letter of January 7, 1988, in which you requested
Advice from the State Ethics Commission.
Issue: You ask, whether a member of a Redevelopment Authority may participate
in a grant program administered on behalf of the City by the Redevelopment
Authority.
Facts: You state that you are the solicitor for the Redevelopment Authority,
hereinafter Authority, for the City of Butler, hereinafter City, wherein Mr.
Ronald E. Forcht, who is one of the five members of the Authority, voted on
May 8, 1985 in favor of a unanimous resolution to approve participation of the
Authority as agent for the City for the Downtown Renaissance Program which is
a grant program that receives a 50% match by the Pennsylvania Department of
Community Affairs for qualified property owners for the purpose of making
storefront facade improvements in the downtown area of the City. You note
that a 50% match is available up to a $1,000.00 maximum for each approved
applicant. You further state that in 1987, Mr. Forcht, while serving as an
Authority board member, made an application for a $1,000,00 match for new
signs for his City property pursuant to the program. After citing McAdoo
Borough v. Pa. L.R.B., 485 A.2d 761 (Pa. 1984) and Borough of Youngsville
v. Zoning Hearing Board, 450 A.2d 1086 (Pa. Commw. 1982) which relates to
questions of conflict of interest for municipal officers, you request advice
as to whether Mr. Forcht may participate in the grant program under the State
Ethics Act.
Discussion: As a member of the Authority, Mr. Forcht is a "public official"
as that term is defined in the State Ethics Act. See 65 P.S. §402. As such,
he is subject to the provisions of the Ethics Act and the restrictions therein
are applicable to him.
Kenneth D. Perkins, Esquire
February 8, 1988
Page 2
Under the Ethics Act, the stated purpose of that 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.
The provisions in Section 3(c) of the Ethics Act first will be
considered. From the facts outlined above, it is not clear whether there will
be any "contract" between Mr. Forcht 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 Opinion, 80 -014
and Lynch Opinion, 79 -047. The governmental body with which Mr. Forcht is
"associated" is the Authority.
Thus, assuming, for purposes of this advice, that a contract would be
made between the Authority and Mr. Forcht 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 Mr. Forcht
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, if Section 3(c) of the Ethics Act is
applicable to his situation, consideration must be given to the other aspects
of the propriety of his proposed conduct under other provisions of the Ethics
Act. 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 appreciated and recognized.
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 recognized. Thus, this conduct in light of Section 3(a)
of the Ethics Act and Section 3(b) of the Ethics Act must be reviewed.
Kenneth D. Perkins, Esquire
February 8, 1988
.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, 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
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 Toohe 0 inion,
83 -003; Balaban Opinion, 83 -004 and Co 1p off/Hendricks Opinion, 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 prgram
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;
Kenneth D. Perkins, Esquire
February 8, 1988
Page 4
3. played no role in the process of selecting and reviewing applicants
or in awa rdi 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.
Additionally, the Commission has determined that a public official may
participate in a grant program even though that official may have participated
in the past in establishing the criteria for the grant program provided that,
at the time the public official acted, he had no foreseeable expectation of
his subsequent application as to the grant program. See Pepper Opinion,
87-008.
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, it is necessary to apply these
principles to this case and particular circumstances. Therefore, Mr. Forcht
may participate in the Program, as outlined above, without resigning from his
position or relinquishing his role as a public official. This is especially
true, if he has met the foregoing criteria. Under such circumstances, so long
as the required abstentions discussed above are observed, Mr. Forcht may apply
for and participate in the benefits associated with this Program.
Kenneth D. Perkins, Esquire
February 8, 1988
Page 5
Finally, reference must be made 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 must be observed, a public official must
neither offer nor accept anything of value on the understanding or with the
intention that his official judgment would be influenced thereby. It is
assumed such a situation does not exist here. Reference to this Section is
added 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.
Lastly, the propriety of the proposed conduct has only been addressed
under the Ethics Act; the applicability of any other statute, code, ordinance,
regulation or other code of conduct has not been considered.
Conclusion: The Ethics Act and the rulings of the Ethics Commission reveal no
reason to preclude Mr. Forcht 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. Lastly, the propriety of the
proposed conduct has only been addressed under the Ethics Act.
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 ctr 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,
Vincent J. Dopko
General Counsel