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HomeMy WebLinkAbout88-559 WehanDear Mr. Wehan: Albert E. Wehan, III, Esquire 338 West Sixth Street Erie, PA 16507 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 27, 1988 88 - 559 Re: Conflict of Interest, Public Official, Immediate Family, Mother, Rehabilitation Grant This responds to you letter of March 10, 1988, in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act presents any restriction upon a township supervisor when his parent applies for a housing rehabilitation grant. Facts: As solicitor for McKean Township, you state that Mike Ferrick is one of the elected supervisors and that his mother, Nellie Ferrick, is applying for a housing rehabilitation grant. After noting that the housing rehabilitation grants are administered by the Erie County Planning Department under a contract with McKean Township, you state that the Board of Supervisors has set forth a criteria for funding priorities on the applications but the Erie County Planning is solely responsible for the determination as to eligibility. Lastly, you note that Mr. Ferrick does not reside with his mother and has no legal or equitable interest in her home. Under these facts and circumstances, you request advice from this Commission as to whether there would be any restrictions upon the conduct of Mr. Ferrick. Discussion: As a supervisor for McKean Township, Mr. Ferrick is - a public official within the definition of that term as set forth in the Ethics Act and the regulations of this Commission. 65 P.S. S402; 51 Pa. Code §1.1. As such, he is subject to the provisions of the Ethics Act. Albert E. Wehan, III, i squi e April 27, 1988 Page 2 Section 3(a) of the Ethics .Lct 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). Section 3(a) basicall provides that a public official or employee may not use his public office or confidential information to obtain a financial gain other than compensation as provided for by law for himself or a member of his immediate family or a business with which he is associated. Under this provision, the Ethics Commission has determined that the use of office by a public official to obtain a gain or benefit for himself or a member of his immediate family which is not provided for in law constitutes a "financial gain other than compensation provided for by law," These determinations have been appealed to the Commonwealth Court of Pennsylvania which has affirmed the Orders of the Commission. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). See also Yocabet v. State Ethics Commission, Pa. Commw. , 531 A.2d 536 (1987). Thus, under this provision, a public official may not use his public position to secure benefits for himself or a member of his immediate family which are not provided for by law. Domalakes, Opinion 85 -010; likewise, the receipt of private financial gait or benefit through use of office is not permitted under this section, Huff, Opinion 84 -015. Section 2. Definitions. "Immediate family." A spouse residing in the person's household and minor dependent children. 65 P.S. 5402. Since immediate family is defined to only include a spouse or minor dependent child, the provision of Section 3(a) would not include his mother. Therefore, under Section 3(a) of the Ethics Act and the definition of "immediate family ", there is no prohibition upon the township supervi3or as to application by his parent for a housing rehabilitation grant. Albert E. Wehan, III, Esquire April 27, 1988 Page 3 Section 3(b) of the Ethics Act provides: (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' the vote, official action, or judgment of the public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Section 3(b) of the Ethics Act must be referenced in order to provide a complete response to your inquiry. Under Section 3(b) of the Ethics Act cited above, which a public official or employee must observe, a public official or employee must neither offer nor accept anything of value on the understanding or with the intention that his judgment would be influenced thereby. It is assumed such a situation does not exist here. This Section is referenced 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. Restricted activities. (d) Other areas of possible conflict shall be addressed by the commission pursuant to paragraph (9) of Section 7. 65 P.S. 403(d). Under the above provision of law, the Ethics Commission, however, is also empowered to address other areas of possible conflict pursuant to Section 3(d). 65 P.S. 5403(d). Fritzincrer, Opinion 80 -008; DeBenedictis, Opinion 86 -002. The parameters of the type of activity encompassed by this provision are generally reviewed in light of the preamble to the Ethics Act which enunciates the legislative intent of the Act. The intent and purpose of the Act is to strengthen the faith and confidence of the people in their government by assuring the public that the financial interests of the holders of public office present neither a conflict nor the appearance or a conflict with the public trust. A public official or employee, pursuant to this provision, is to ensure that their personal financial interests present neither a conflict1nor the appearance of a conflict with Albert E. Wehar - III, Esqu April 27, 1988 Page 4 the public trust. 65 P.S. 5401. Such a conflict may exist where an individual represents one c:2 more adverse interests. Alfano, Opinion 80 -007; where an individual serves in positions that are incompatible or conflicting; Nelson, Opinion 85 -009, or where such an official or employee accepts compensation to which he is not entitled. Domalakes, Opinion supra. In relation to the above cited sections of law, the Commission has determined that the definitional limitations applicable to the other Sections of the Act are not relevant to questions addressed under Section 3(e). Leete, Opinion 82 -005. As such, the Commission has placed restrictions upon various actions of public official's and employees when acting upon matters that involve relatives outside of the previously cited definition. O'Reilly, Opinion 83 -012. Thus, for example, the Commission has determined that a public official may not participate in the employment selection process where the official's adult son is an applicant. See O'Reilly, Opinion 83 -012. Likewise, in Leete, Opinion, 82 -005, the Commission concluded that a county commissioner could not sit on a salary board and vote the salary of her brother as Director of the county planning agency without engaging in conduct which would appear to conflict with the public trust. See also Lewis, Advice 85 -558; Ceraso, Advice 85 -575. Although there is no prohibition under section 3(a) of the Ethics Act as previously noted as to the above activity, the Commission has determined under Section 3(d) that this type of activity creates the appearance of a conflict of interest where a public official uses his public office in favor of a relative who is not within the definition of "immediate family." Therefore, under Section 3(d) of the Ethics Act, Mr. Ferrick may not use public office regarding advancing or obtaining approval for the application by his parent for a housing rehabilitation grant. In this respect, it is noted that the Erie County Planning determines the eligibility; hence, there does not appear to be a possibility that Mr. Ferrick could use public office regarding his mothers application for housing rehabilitation grant. It is of course, expressly assumed that when the Board of Supervisors set forth the criteria for funding priorities on applications, Ir. Ferrick did not use his office in a fashion which would create a de facto priority for his mother. Albert E. Wehan, III, Esquire April 27, 1988 Page 5 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 other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: As a supervisor for McKean Township Mr. Ferrick i' a public official subject to the provisions of the State Act. His mother is not a member of his "immediate family" as that term is defined in the Ethics Act. Although there is no prohibition under Section 3(a) of the Ethics Ac,.regarding Mr. Ferrick's mother in applying for a housing rehabilitation grant, under Section 3(d) of the Ethics Act, he may not participae or be involved regarding the processing of his mother's applicRtion for a housing rehabilitation grant. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics 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 r:cts complained of in reliance on the Advice given. such. This letter is a public record and will be made available as Finally, if you disagree with this Advice or if you hale any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance befo ?.e the Commission will be scheduled and a former Opinion frog, the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service oi tLis Advice pursuant to 51 Pa. Code §2.12. Sincerely, Vincent J. Dopko, General Counsel