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HomeMy WebLinkAbout97-615 PundtSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 15, 1997 Brenda A. Pundt City Controller City of Erie 304 Municipal Building Erie, PA 16501 97 -61'5 Re: Conflict, Public Official /Employee, City Controller, Sale of Property, HOME . Program, Son, Daughter -in -Law. Dear Ms. Pundt: This responds to your letter of September 11, 1997 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any, prohibition or restrictions upon a City Controller as to the sale of a particular property' through the City's HOME Program, where the City Controller is required to sign for the disbursement of funds from the City under the HOME Program; the buyer qualifies for the HOME Program; the property is presently deeded to the City Controller's son and daughter -in -law; and the daughter -in -law and her siblings would receive the proceeds from the sale of the property. Facts: As the City Controller for the City of Erie, you request an advisory from the State Ethics Commission. You state that your daughter -in -law, Darlene Pundt (who is the Financial Analyst for the City), and her two siblings are in the process of selling their deceased mother's home. The sale price is below the appraised value. The buyer qualifies for the HOME Program which is administered by the City of Erie. You state that Darlene Pundt and her siblings would receive the proceeds from the sale of the property. You further state that neither you nor Darlene Pundt had any input in the sale of the home. As City Controller, you are required to sign for the disbursement of funds from the City relative to the HOME Program. You ask whether your participation as to this particular property would present any problems under the Ethics Law. Pundt, 97 -615 October 15, 1997 Page 2 You have submitted copies of the following documents which are incorporated herein by reference: (1) A memorandum dated August 22, 1997 from Dave Deter (a City Planner) to Jerry VilleIla, Deputy Solicitor for the City, regarding this matter; and (2) A letter dated August 26, 1997 from Deputy Solicitor VilleIla to you and Dave Deter in which the Deputy Solicitor sets forth his legal opinion in this matter. It is noted that according to the memorandum from Deter, the property in question is presently deeded to Darlene Pundt and Matthew Pundt, who is your son. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(1 1) of the Ethics Law, 65 P.S. §§407(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. §§407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As the City Controller for the City of Erie, you are a public official /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 duties and responsibilities unique to a particular public office or position of public employment. Pundt, 97 -615 October 15, 1997 Page 3 "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(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 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. In each instance of a conflict, 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 the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Law, then voting is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. In applying the above provisions of the Ethics Law to the circumstances which you have submitted, pursuant to Section 3(a) of the Ethics Law, a public official /public Pundt, 97 -615 October 15, 1997 Page 4 employee is prohibited 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. Although a daughter -in -law would not be within the definition of "immediate family" set forth above, the State Ethics Commission has, in one instance, found a violation of Section 3(a) where the public official used the authority of office to create a new employment position and to appoint his son -in -law to same. The Commission found that the son -in -law's salary increase resulted in a direct private pecuniary benefit to the public official's daughter — who was a member of his immediate family — through the deposit of such monies in a joint account where they were used to satisfy joint obligations for which the daughter was legally liable. Pulice, Order No. 1035 (presently on appeal to the Commonwealth Court of Pennsylvania at Docket No. 0875 C.D. 1997). In this case, the "in -law" issue need not be addressed because the documents which you have submitted reflect that your son — who is a member of your immediate family — is named on the deed, together with your daughter -in -law as an owner of this property. As a result of your son's legal ownership interest in the property, you would" have a conflict of interest which would preclude your participation as City Controller with regard to the disbursement of funds from the City relative to the sale of this property. In each instance of a conflict of interest, you are required to abstain from participation and to fully satisfy the disclosure requirements of Section 3(j) as set forth 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 the City Controller for the City of Erie, you are a public official /public employee subject to the provisions of the Ethics Law. As City Controller, you would have a conflict of interest with regard to the sale of a property through the City's HOME Program, where the property is presently deeded to your son and daughter -in -law. In each instance of a conflict of interest, you would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 3(j) as set forth above. 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. This letter is a public record and will be made available as such. Pundt, 97 -615 October 15, 1997 Page 5 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 1. 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. Vincent J: Dopko Chief Counsel