Loading...
HomeMy WebLinkAbout98-565 LevineJeffrey A. Levine, Esquire Herlands & Rothenberg Corner 8th Ave. and Church St. P.O. Box 108 Carbondale, PA 18407 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 10, 1998 98 -565 Re: Conflict; Public Official /Employee; City; Third Class; Home Rule; Council Member; Housing Authority; Appointment; HUD; Program; Applicant; Spouse; Immediate Family. Dear Mr. Levine: This responds to your letters of May 5 and May 12, 1998 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 council members of a home rule charter city as to voting or participating upon appointments to the housing authority, which administers a program as to which council members who own properties have submitted applications. Facts: You are the Solicitor for the City of Carbondale (City). You have been authorized by two Council members to request an Advice of Counsel from the State Ethics Commission. Carbondale is a third -class city, governed pursuant to a Home Rule Charter, under which the Mayor, with the advice and consent of City Council, appoints the members of the Housing Authority (Authority). The Authority is a separate entity, over which the City has no direct influence, other than in appointing its members. One of the Authority's responsibilities is the administration of the "HUD - Section 8" program. As to the connection between the Council members and the Authority, you state: "Members of City Council own properties for which applicants [sic] are accepted under this program." Letter of Levine dated May 5, 1998. The spouse of one of the Council members is also employed in an administrative capacity by the Authority. You inquire as to whether the two Council members have a conflict in voting on housing authority appointments. 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 Levine, 98 -064 June 10, 1998 Page 2 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 members of the Council of the City of Carbondale, the two individuals are public officials as that term is defined in the Public Official and Employee Ethics Law ( "Ethics Law "), and hence they 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. "Immediate family." A parent, spouse, child, brother or sister. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. As to Section 3(a) of the Ethics Law, a public official /public 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. Levine, 98 -064 June 10, 1998 Page 3 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. 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. As to the Council member whose spouse is employed by the Authority, he would not be precluded from participating in appointments just because his spouse is an employee of the Authority since the Authority is a governmental body and not a business with which his spouse is associated. See, Warso, Order 974. In general, the two Council members would not have a conflict in participating in the process of confirming appointments of Authority members assuming that the prospective applicants are not members of their immediate family. Examples of instances where Sections 3(a), (b) and (c) of the Ethics Law would prohibiit such participation are as follow: using the authority of office so as to advance or ensure that their applications for benefits as to their properties would be approved by the Authority; or entering into any understanding with prospective appointees whereby an appointment would be supported in return for the appointee approving an application as to that Council member's property. It is not suggested that the Council members would engage in such conduct. The above examples are set forth to illustrate the application of the provisions of the Ethics Law. Levine, 98 -064 June 10, 1998 Page 4 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 members of the Council of the City of Carbondale, the two individuals are public officials subject to the provisions of the Ethics Law. The two Council members may vote or participate upon appointments to the housing authority, which administers a program as to which the two council members who own properties have submitted applications, subject to the qualifications stated above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(111, 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. 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 I. 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. Sincerely, Vincent J. Dopko Chief Counsel