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HomeMy WebLinkAbout00-554 FullerErnest Fuller 1427 Kearney Hill Road Six Mile Run, PA 16679 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1 -800- 932 -0936 ADVICE OF COUNSEL March 28, 2000 Re: Conflict; Public Official /Employee; Member; County; Planning Commission; Township; Secretary/Treasurer; CDBG Funds. Dear Mr. Fuller: This responds to your letter of February 16, 2000 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 e, seq., presents any prohibition or restrictions upon a member of a county planning commission as to participating in deliberations and recommendations regarding community development block grant project funding to a township where the planning commission member is also a resident of the township and the township secretary /treasurer. Facts: You are a Member of the Bedford County Planning Commission ( "Planning Commission "). You state that your position is an unpaid advisory position. You are also a resident of Broad Top Township ( "Township "), Bedford County, and the Township's Secretary/Treasurer. The basic responsibility of the Planning Commission is to develop a County Plan which is then subject to the final approval by the County Commissioners_ The staff of the Planning Commission works directly for the County Commissioners in performing many planning and grant management activities. The staff reports on its activities to the Planning Commission Board at monthly meetings and receives general guidance from the Board Members. The Board also provides advice to many other entities in addition to the County Commissioners. You state that there currently are no County land use or zoning ordinances in Bedford County which the Planning Commission administers. Every year, the Planning Commission proposes a budget to the County Commissioners for its activities which is subject to the approval of the County Commissioners. Funds are transferred from the Commissioners' bank accounts to Planning Commission bank accounts on an as needed basis and the Commission Board approves the payment of bills from those accounts at its monthly meetings. FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics @state_pa.us 00 -554 Fuller, 00 -554 March 28, 2000 Page 2 Bedford County receives Community Development Block Grant ( "CDBG ") funds every year which it then allocates to specific projects which fall within State guidelines. You state that the Planning Commission staff handles the project submission process from eligible local entities. The Planning Commission Members then prioritize the projects that are submitted and make a recommendation to the County Commissioners as to how the County should allocate the CDBG funds. The County Commissioners make the final decision as to the manner in which the funds will be used. You state that the County Commissioners have often made changes to the Planning Commission's recommendations. The Township is eligible for CDBG funds_ Over the next several years, the Township intends to make requests to the County for the use of such funds for eligible Township projects. You maintain that none of the CDBG funds will be used for a project that would provide you with a personal benefit. Given the above facts, you ask whether you would have a conflict as to participating in the Planning Commission's deliberations on CDBG project funding to the Township including the setting of priorities and the making of specific recommendations to the County Commissioners. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§1107(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 Pa.C.S. §§1107(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. The facts which you have submitted do not clearly indicate whether the Bedford County Planning Commission ( "Planning Commission ") on which you serve is a purely advisory body. Although you have stated that you are in "an unpaid advisory position," the factual submission is insufficient as to the status of the Planning Commission. Under the Ethics Act and Regulations, members of planning commissions that are purely advisory are not public officials under the Ethics Act but they are subject to Sections 1103(b) and 1103(c) which apply to everyone. Assuming the Planning Commission is not a purely advisory body, as a Member, you are a "public official" as that term is defined in the Ethics Act, and hence you are subject to the provisions of that Act. Section 1 103(a) of the Ethics Act provides: Section 1103. Restricted activities. (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. §1103(a). The following terms are defined in the Ethics Act as follows: Section 1102. Definitions. Fuller, 00 -554 March 28, 2000 Page 3 "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. The term 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. 65 Pa.C.S. §1102. In addition, Sections 1103(b) and 1103(c) of the Ethics Act 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 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. Section 1103(j) of the Ethics Act provides as follows: Section 1103. Restricted activities. (j) Voting conflict. - -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 Fuller, 00 -554 March 28, 2000 Page 4 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. 65 Pa.C.S. §1103(j). In each instance of a conflict, Section 1103(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 Act, 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 Act to the instant matter, pursuant to Section 1103(a) of the Ethics Act, 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. Having established the above principles, your specific inquiry shall now be addressed. Conditioned upon the assumption that the Planning Commission is not a purely advisory body, as a Planning Commission Member, you would not have a conflict as to participating in deliberations on CDBG project funding to the Township including the setting of priorities and the making of specific recommendations to the County Commissioners. This conclusion is based upon your specific factual representation that your participation in such matter will not result in a financial benefit to yourself. Absent the element of a financial gain, a transgression of Section 1 103(a) of the Ethics Act would not exist. 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. Specifically not addressed herein is the applicability of the respective municipal code. Conclusion: Assuming the Bedford County Planning Commission is not a purely advisory body, as a Member, you are a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. You would not have a conflict as to participating in deliberations on CDBG project funding to Broad Top Township including the setting of priorities and the making of specific recommendations to the County Commissioners based upon your specific factual representation that your participation would not result in a financial benefit to yourself. Absent the element of a financial gain, a transgression of Section 1103(a) of the Ethics Act would not exist. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), an Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith Fuller, 00 -554 March 28, 2000 Page 5 conduct in any other civil or criminal proceeding, provided 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 ). 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. cent !I opko Chief Counsel