Loading...
HomeMy WebLinkAbout94-572 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 13, 1994 94 -572 Re: Conflict, Public Official /Employee, County, Planning Office, Housing and Community Development, Subsidized Housing Program, Utilization of Apartment and Housing Program. This responds to your letter of May 3, 1994 in which you requested confidential advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a county senior planner from offering an apartment which is jointly owned with his spouse for inclusion in a subsidized housing program for low income persons. Facts: You are the Senior Planner for the A County Planning Office. You and your wife jointly own an apartment which you are considering renting to tenants. Since a number of state and federal programs are designed to ensure that housing is available for low income persons, one option available to you is to rent the apartment to low income persons. The program provides that the landlord will receive rent that approximates the fair market value for the community in return for making the housing available to low income persons. The amount of rent paid for the specific size apartment is established by the U.S. Department of Housing and Community Development. The A County programs which subsidize rents for low income persons are coordinated by the A County Office of Housing and Community Development. The Planning Office and Office of Housing and Community Development have a working relationship and the two agencies share information and occasionally work together on short and long term projects. You inquire as to whether it would be violative of the spirit or letter of the Ethics Law for you and your spouse to offer the apartment you own to the Office of Housing and Community Development for inclusion in a subsidized housing program for low income persons. You include an organizational chart for A County Government as well as a job description which is incorporated herein by reference. Confidential Advice, 94 -572 June 13, 1994 Page 2 Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. §S407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 P.S. SS407(10), (11). An advisory ry only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As Senior Planner for A County Planning Office, you are a public employee as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. Definitions. "Conflict or conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of Confidential Advice, 94 -572 June 13, 1994 Page 3 duties and responsibilities unique to a particular public office or position of public employment. "Immediate family." A parent, spouse, child, brother or sister. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. Section 3(f) of the Ethics Law provides as follows: Section 3. Restricted activities (f) No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, 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. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. . Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. Parenthetically, where contracting is otherwise allowed or where there appears to be no expressed prohibitions to such contracting, the above particular provision of the law would require that an open and public process must be used in all Confidential Advice, 94 -572 June 13, 1994 Page 4 situations where a public official /employee is otherwise appropriately contracting with his own governmental body, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more. This open and public process would require that the following be observed as to the contract with the governmental body: (1) prior public notice of the employment or contracting possibility; (2) sufficient time for a reasonable and prudent competitor/ applicant to be able to prepare and present an application or proposal; (3) public disclosure of all applications or proposals considered and; (4) public disclosure of the contract awarded and offered and accepted. Section 3(f) of the Ethics Law also requires that the public official /employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities (j) Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest, as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be Confidential Advice, 94 -572 June 13, 1994 Page 5 permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest, and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. If a conflict exists, Section 3(j) requires the public official /employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor. In applying the provisions of the Ethics Law to the instant matter, you would not be prohibited from offering your apartment for participation in the subsidized housing program. However, you could not use the authority of office or confidential information as a means, directly or indirectly, whereby your apartment will be selected for the program. For example, you may not have any involvement or participation in establishing the criteria for selecting or for actually selecting apartments for utilization in the program. See WoodrincQ, Opinion 90 -001. Likewise, you could not use your public position in a fashion to eliminate competitors, as for example, structuring the program in such a way that other people or businesses that have apartments would be ineligible or secondary as to offering their apartments for participation in the program. See Pepper, Opinion 87 -018 where the Commission held that a public official /employee may not use the authority of office in a negative fashion to eliminate potential competitors. Thus, you are cautioned that the Ethics Law would require that you as a public employee be totally removed from participation in the process as to the subsidized housing program and that you must comply with the public and written disclosure requirements of Section 3(j) above. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the respective municipal code. Conclusion: As Senior Planner for A County Planning Office, you are a public employee subject to the provisions of the Ethics Law. Subject to the limitations and qualifications noted above, the Ethics Law would not preclude you from offering an apartment which Confidential Advice, 94 -572 June 13, 1994 Page 6 you jointly own with your wife for inclusion in a subsidized housing program for low income persons. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), 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. such. This letter is a public record and will be made available as Fina if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within fifteen (15) days of the date of this Advice pursuant to 51 Pa.Code §13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787 - 0806). Failure to file such an appeal at the Commission within fifteen (15) days may result in the dismissal of the appeal. ei Sincerely, 140 Vincent J. Dopko Chief Counsel