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HomeMy WebLinkAbout97-587 JoslinBetty Sue Joslin 505 Mulberry Lane Conneautville, PA 16406 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 24, 1997 97 -587 Re: Conflict, Loan /Grant Program, Participation by Public Official /Public Employee, President, Borough Council, Department of Community and Economic Development, Grant Assistance for Housing Repairs. Dear Ms. Joslin: This responds to your letter of May 31, 1997, by which you requested advice from the State Ethics Commission. Issue: Whether, pursuant to the Public Official and Employee Ethics Law, the President of a Borough Council may participate in a grant received by the Borough for assisting low /moderate income persons with housing repairs. Facts: As President of Borough Council for the Borough of Conneautville, you seek an advisory from the State Ethics Commission. The Borough received a grant from the Department of Community and Economic Development (DCED) for assistance to low /moderate income persons for housing repairs. At the time of the application submission to DCED, you were Vice - President of Borough Council, and were not considering applying for such assistance because you did not realize that you would be in need of a new roof. Now, you are interested in participating in the program because you are of low /moderate income, you need a new roof, and you cannot afford the expense. You state that not all of the grant money has been used, and other people in the Borough have had approximately one year to apply if they were interested. Finally, you state that service on Borough Council is totally voluntary and you are not compensated for that service. You indicate that if it would be necessary for you to resign your position to receive the financial assistance you would be willing to do so. Joslin, 97 -587 June 24, 1997 Page 2 You state that the Borough Solicitor has advised you that there is nothing in the Borough Code to preclude your participation in the assistance program. However, you are requesting an advisory from this Commission regarding the propriety, under the Ethics Law, of your participation in the grant program. Discussion: As President of Borough Council for the Borough of Conneautville, you are a "public official" as that term is defined in the Ethics Law and hence you are subject to the provisions of that Law. 65 P.S. §402; 51 Pa. Code §11.1. Sections 3(a) and 3(j) of the Ethics Law provide as follows: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. (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 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. The following terms that pertain to conflicts of interest under the Ethics Law are defined 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 Joslin, 97 -587 June 24, 1997 Page 3 65 P.S. §402. 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 duties and responsibilities unique to a particular public office or position of public employment. Section 3(f) of the Ethics Law, which pertains to contracting, provides as follows: (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. 65 P.S. §403(f). The following terms that pertain to Section 3(f) are defined in the Ethics Law as follows: "Governmental body with which a public official or public employee is or has been associated." The governmental body within State government or a political subdivision by which the public official or employee is or has been employed or to which the public official or employee is or has been appointed or elected and subdivisions and offices within that governmental body. Joslin, 97 -587 June 24, 1997 Page 4 65 P.S. §402. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. In applying the above provisions of the Ethics Law to your inquiry, Section 3(a), which pertains to conflicts of interest, shall be considered first. The stated purpose of the Ethics Law 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 or candidates for public office do not conflict with the public trust. 65 P.S. §401. Section 3(a) of the Ethics Law in particular prohibits a public official /public employee from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. The Commission recognizes that public concern and criticism may arise if a public official or public employee who serves a governmental body receives benefits under the very program which that governmental body administers. On the other hand, as a general rule, the Ethics Law was not enacted 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. Wolff, Opinion 89 -030; Woodring, Opinion 90 -001. In order to insure that a public official or public employee does not have a conflict of interest when he, as a citizen, seeks to participate in a loan or grant program administered by the governmental body which he serves, he must: 1. play no role in establishing the criteria under which the program is to operate, particularly with reference to the structure or administration of the program; 2. play no role in establishing or implementing the criteria by which selections for program participation are to be made; 3. play no role in the process of selecting and reviewing applicants or in awarding grants or funds; 4. use no confidential information acquired during the holding of public office or public employment to apply for or to obtain such funds, grants, etc., and 5. abstain and satisfy the disclosure requirements of Section 3(j) above in cases where the public official /public employee is associated with administering the loan or grant program. The abstention and disclosure would be required not only as to his own application, but also as to similarly situated individuals with whom the public official /public employee might be competing for available funds. As for Section 3(f), it is noted that this sort of program may require participants to enter into contracts and /or subcontracts. If you, as a participant in this Program, would enter into a contract with the Borough of Conneautville, the governmental body Joslin, 97 -587 June 24, 1997 Page 5 with which you are associated, or would enter into a subcontract with any "person" (as defined above) who has a contract with the said governmental body, Section 3(f) of the Ethics Law would impose the following requirements if the contract or sub- contract would be valued at $500.00 or more: 1. prior public notice of the contract possibility; 2. public disclosure of applications and contracts considered; 3. public disclosure of the award of the contracts; and 4. no supervisory or overall responsibility for the implementation or administration of the contract or sub- contract by the public official /employee. As long as you observe the restrictions of Sections 3(a) and 3(f), you may apply for and participate in the benefits associated with the Borough's grant from DCED for assisting low /moderate income persons with housing repairs. This Advice is based upon the facts which have been submitted and is limited to addressing the applicability of Sections 3(a) and 3(f) of the Ethics Law. It is expressly assumed that there has been no use of authority of office for a private pecuniary benefit as prohibited by Section 3(a) of the Ethics Law. Further, you are advised that Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment 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. 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 Code of Federal Regulations or the respective municipal code. Conclusion: As President of Borough Council for the Borough of Conneautville, you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude you from participating in the grant received by the Borough from DCED for assistance to low /moderate income persons for housing repairs, provided you played no role in establishing the criteria under which the program would operate, played no role in implementing the criteria for selecting applicants, played no role in selecting or reviewing applicants, used no confidential information and finally had no involvement with the administration of the program. The requirements of Section 3(f) of the Ethics Law noted above, to the extent applicable, must be observed. 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 Joslin, 97 -587 June 24, 1997 Page 6 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 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 thirty (30) 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 thirty (30) days may result in the dismissal of the appeal. cerely, i cent Chief Counsel ko