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HomeMy WebLinkAbout00-587 Jenkins HusbandRubye Jenkins - Husband The City of Erie City Council 626 State Street - Room 104 Erie, PA 16501 -1128 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL June 28, 2000 00 -587 Re: Conflict; Public Official /Employee; City Council; Member; President; United Neighborhood Facilities Health Care Corporation; Consultant; Block Grant Program; Vote. Dear Ms. Jenkins - Husband: This responds to your letter dated May 22, 2000, received May 30, 2000, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 =S. §1101 et seq., presents any prohibition or restrictions upon a city council president who, in her private capacity, is a paid consultant to a non - profit corporation, where the city council considers matters impacting entities that have representatives on the board of directors of that non - profit corporation. Facts: As a Member and President of the Erie City Council ( "City Council "), you see clan advisory from the State Ethics Commission. The facts which you have submitted may be fairly summarized as follows. In your private capacity, you are a paid consultant to the United Neighborhood Facilities Health Care Corporation ( "UNFHCC "). The UNFHCC is a 501c(3) non - profit corporation. It was formed through the efforts of the Martin Luther King Center, Inc. and the John F. Kennedy Center, Inc. to provide for the women, infants and children program and Sickle Cell Anemia Program. The Booker T. Washington Center, Inc. was recently added as a co- sponsoring corporation of the UNFHCC. The Martin Luther King Center, Inc., John F. Kennedy Center, Inc., and the Booker T. Washington Center, Inc. are collectively referred to herein as the "Centers." The only funding the UNFHCC receives is from the Pennsylvania State Department of Health. The UNFHCC has a Board of Directors ( "Board ") and an Executive Director who, at the discretion of the Board, oversees all aspects of the UNFHCC's operations. Each of the Centers has at least three representatives on the Board. The Board also includes consumers and various other professionals in the community. No one FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us Jenkins - Husband, 00 -587 June 28, 2000 Page 2 Center has a controlling interest on the Board, but if all three Centers would decide to act together on an issue, then the Centers would have a controlling interest. All three Centers receive partial funding through the Community Development Block Grant program ( "Grant Program ") administered by the City of Erie through the Mayor's Office. The City Council is required to hold public meetings on the Grant Program, and it votes to approve the final submission of the Grant Program to the Department of Housing and Urban Development ( "HUD ") by the Mayor's Office. The City Council may not designate which community entities may participate in the Grant Program or how much funding each is to receive. Given that you serve as a paid consultant to the UNFHCC, you ask whether you would have a conflict of interest in your capacity as a Member and President of City Council with regard to voting on matters, such as the Grant Program, which may impact the Centers. It is parenthetically noted that you state that you have already received a legal opinion on this issue, although neither the source nor the substance of such opinion have been submitted. 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 request 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. As a Member and President of the Erie City Council, 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 1103(a) of the Ethics Act provides: § 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: § 1102. Definitions "Conflict" or "conflict of interest." Use by a ublic 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 Jenkins - Husband, 00 -587 June 28, 2000 Page 3 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. "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. 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: § 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 governing 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. Jenkins - Husband, 00 -587 June 28, 2000 Page 4 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. Pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest in matters before City Council which would impact the Centers, such as the Grant Program. This conclusion is based upon the State Ethics Commission's rulings in Bassi, Opinion No. 86- 007 -R, and Woodrinci, Opinion No. 90 -001. In Bassi, Opinion No. 86- 007 -R, the State Ethics Commission held, inter alia, that a County ommissioner (Edward Paluso) could not enter into a lease with a municipal authority, where one of the members of the authority (Norman Carson) was a county employee directly responsible to the commissioners of the county, unless the execution of the lease was accomplished after an open and public process, with the authority member abstaining from participating in the review and award of said lease, and the county commissioner abstaining from participating in any, matter relating to the authority member in his position as a county employee. The Commission stated, inter alia: . we cannot ignore the fact that Mr. Carson is an authority member and has influence and control over authority decisions. In this respect, Mr. Carson, by voting on the final adoption of a lease, would be voting on a matter directly related to his employer. Even though that employer is another governmental body, we have held, in the past, that a public official may not vote or participate in a matter if it somehow relates to a financial interest which he may have. See, Welz, 86 -001. In the instant situation, Mr. Carson would be called upon to determine the advisability of renting property for the authority. The property which they are seeking to rent is owned by the individual or one of the individuals who currently supervises him and controls his public employment with the county. As a result of this, Mr. Carson, as an authority member, should abstain from participating in any matter relating to this particular lease. See, Bassi, 86 -007 at 3. The Commission further stated: Mr. Paluso as a county commissioner, is, in part, responsible for the general supervision of Mr. Carson. Mr. Carson, on the other hand, is an authority member in a position to grant Mr. Paluso a lease which results in Mr. Paluso receiving a financial gain. It may be difficult for the public to perceive how Mr. Paluso's actions as a county official, would not somehow be influenced by this potential leasing arrangement. It may be argued that Mr. Paluso, in dealing with Mr. Carson, to date, has done so in order to effect the favorable outcome of this lease. Additionally, it could be argued that Mr. Carson voted in favor of the lease in order to advance his position Jenkins - Husband, 00 -587 June 28, 2000 Page 5 as a full -time county employee. The above factual scenarios, while hypothetical in nature, nonetheless create the types of conflicts of interest that are to be addressed by this Commission. Id. at 4. In Woodrinq, Opinion No. 90 -001, the State Ethics Commission reviewed a similar situation. Jesse Woodring, Chairman of the Sunbury Redevelopment Authority, had applied to the City for a rehabilitation grant through the Federal Rental Rehabilitation Program (hereinafter, the "Program "). Kenneth Pick, who was employed as the Executive Director of the Redevelopment Authority (chaired by Woodring) also served as the Community Development Coordinator for Sunbury. In the latter capacity, Pick was administrator in charge of the Program for the City. Pick's functions included administering the Program, reviewing all applications, and determining eligibility. The Commission stated: we are concerned that Mr. Pick, who is an employee of the Redevelopment Authority of which you are Chairman, has the duty of reviewing all applications and determining eligibility in his capacity as Community Development Coordinator for the city. In particular, the potential exists, given the employer - employee relationship between the Redevelopment Authority and Mr. Pick, that your application might be reviewed in a more favorable light than other applications. To forestall such a situation, you must not participate or take any action as to Mr. Pick if your application is approved and you receive benefits. Bassi, Opinion 86 -007. In addition, Section 30) of the Ethics Law would require you to publicly note that you would have a conflict as to any matter involving Mr. Pick. In addition, you must file a written memorandum to that effect with the person responsible for recording the minutes. Woodrinq, Opinion No. 90 -001 at 6. As was the case in the Bassi and Woodrinq rulings discussed above, the facts which you have submitted reflect that in your public position, you exercise authority over matters such as the Grant Program, that would impact one or more of the Centers. In your private capacity, you are a consultant hired by the UNFHCC, whose Directors include representatives of the Centers. Therefore, for the reasons enunciated in Bassi and Woodrinq, supra, you would have a conflict of interest pursuant to Section 1103(a) of the Ethics Act in matters such as the Grant Program which would impact one or more of the Centers. In each instance of a conflict of interest, you would be required to abstain from participation in your public capacity. The abstention requirement is not limited merely to voting, but extends to any use of authority of office. In Juliante, Order No. 809, the Commission recognized that the use of authority of office asdefined in the Ethics Act includes, for example, discussing, conferring with others, and lobbying for a particular result. In each instance of a conflict of interest, you would also be required to satisfy the disclosure requirements of Section 11030) set forth above. 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. Jenkins - Husband, 00 -587 June 28, 2000 Page 6 Conclusion: As a Member and President of the Erie City Council ( "City Council), you are a public official sub'ect to the provisions of the Public Official and Employee Ethics Act ("Ethics Act "), 65 Pa.C.S. §1101 et seq. In your capacity as a public official, you would have a conflict of interest in matters before City Council that would impact the Martin Luther King Center, Inc., the John F. Kennedy Center, Inc. and /or the Booker T. Washington Center, Inc., collectively referred to herein as the "Centers," because you are a paid consultant to the United Neighborhood Facilities Health Care Corporation ( "UNFHCC ") and the Centers have representatives on the Board of Directors of the UNFHCC. You specifically would have a conflict of interest as to the Community Development Block Grant Program which funds the Centers. In each instance of a conflict of interest, you would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) set forth above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 110`7(11), an 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, 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(). Th 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. incerely, ve-c..0-41 '■_ '40 T1 Vincent J. opko Chief Counsel