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HomeMy WebLinkAbout83-003 TooheyJohn S. Toohey, Esquire North Church Street Extension Box 5775 Mount Pleasant, PA 15666 II. Factual Basis for Determination: III. Applicable Laws: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 March 3, 1983 OPINION OF THE COMMISSION RE: Rehabilitation Program, Councilmen Participation Dear Mr. Toohey: I. Issue: 83 -003 You inquire as to whether the Ethics Act prohibits or places any restraints upon the participation by a councilman in a rehabilitation program administered by the Borough. You serve as solicitor for the Borough of Scottsdale, hereinafter, the Borough. The Borough is a direct grantee of funds for their Housing Rehabilitation Program which is funded in part with grants from the Department of Community Affairs (DCA) and in part from the U. S. Department of Housing and Urban Development (HUD). Two councilmen hereinafter, the Councilmen, within the Borough apparently qualify for participation in the program and are located in the designated "target" areas for rehabilitation purposes. The Councilmen intend to apply for these grants. The Borough's grant program would not require a contract to be made between the Councilman and the Borough. If the grant is made it would involve an expenditure of money by the Borough and the Councilmen would benefit from the contract. The law to be applied to this question is as follows:: Section 1. Purpose The Legislature hereby declares that public office is a public trust and that any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust. In order to strengthen the faith and confidence of the people of the State in their government, the Legislature further declares that the people have a right to be assured that the financial interests of holders of or John S. Toohey, Esquire March 1, 1982 Page 2 candidates for public office present neither a conflict nor the appearance of a conflict with the public trust. Because public confidence in government can best be sustained by assuring the people of the impartiality and honesty of public officials, this act shall be liberally construed to promote complete disclosure. 65 P.S. 401. Section 3. Restricted Activities (a):No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a) (c) No public official or public employee or a member of his immediate family or any business in which the person or a member of the person's immediate family is a director, officer, owner or holder of stock exceeding 5% of the equity at fair market value of the business shall enter into any contract valued at $500 or more with a governmental body 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. Any contract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of making of the contract. 65 P.S. 403(c). (e) No former official or public employee shall represent a person, with or without compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 P.S. 403(e). Borough Code, 53 P.S. 46404: No Borough Official ... shall be interested in any appreciable degree, either directly or indirectly in any ... contract entered into or expenditure money-made by the Borough ... involving the expenditure ... of more than $1000 in any calendar year John S. Toohey, Esquire March 1, 1982 Page 3 IV. Discussion: As elected Councilmen, the two individuals in question, are "public officials" as defined by the Ethics Act. 65 P.S. 402. As public officials, these Borough Councilmen must insure that their conduct conforms to the requirements of the Act and presents neither a conflict nor the appearance of a conflict with the public trust. The first question you raise is whether the Councilmen in question must conform their conduct exclusively to the requirements of the Ethics Act or whether the requirements of the Borough Code, cited above, remain 4pplicable. Specifically, is there any "conflict of law" between the requirements of the Ethics Act and the Borough Code? These two sections do not, in our estimation, conflict. The Borough Code would prohibit an indirect interest in a contract, while the Section 3(c) of the Ethics Act requires an open and public process to be applied where a contract is made directly between the governmental body on which the Councilmen serve (Borough Council) and the Councilmen. The'two sections of law do not conflict; each can be complied with and, therefore, there is no need to apply the "conflict of law" provisions of Section 12 of the Ethics Act even if this provision were to be said to supercede and preclude the application of the Borough Code. See 65 P.S. 412. We must apply the provisions of the Ethics Act and render our opinion in relation to those provisions. We do not review or make any comment as to the interpretation of the Borough Code. Such interpretation is not within our jurisdiction. In relation to Section 3(c) of the Ethics Act, as noted above, there is no contract in this case between the Borough and the Councilmen. Thus, the provisions of Section 3(c) of the Ethics Act which would require an open and public process before any contract between the Councilmen and the Borough can be awarded are inapplicable. The Ethics Act also requires that no public official may use his public office to obtain financial gain for himself, a member of his immediate family or business with which he is associated to an extent other than the compensation allowed by law. See Section 3(a) of the Ethics Act, 65 P.S. 403(a). The fact that an individual is a "public official" does not generally and automatically disqualify him from participating in programs which would otherwise be available to hirn as a member of the general public. This Section of the Ethics Act would, however, require that if and when a public official is in a position to tailor the benefit program to specially benefit himself or to influence the award of a grant to himself, a business with which he is associated, or a member of his immediate family, he should in all cases abstain from participating in the decision - making process related to such. John S. Toohey, Esquire March 1, 1982 Page 4 Thus, an individual Borough Councilman could apply for funds, so long as he played no role in deciding who would get the funds, establishing the criteria by which the program itself was to be operated and /or criteria by which applications would be reviewed or actually granted, and used no confidential information acquired during his holding of public office to apply for or obtain such funds. Additionally, there should be no use of office so as to "mold" or "tailor" the program to benefit the official. In the present case the standards of the program appear to be established to conform to [)CA and HUD requirements but if these individual Councilmembers "molded" this program to their own benefit they could not then participate in the program. In any event, it is clear that the Councilmen must remove themselves from making any decisions (including discussions) on the; distribution of the limited funds available. If a Councilman- applicant could effectively deny all grant applications other than his own thereby making funds available for his own home /project, the public perception of impartiality would undoubtedly be impaired. See Reisinger, 82- 146 -C. Also, in this same vein, the Councilmen- applicants should insure the widest possible dissemination of the fact that they are applying for these funds, that the public is allowed to comment on this process and that the reasons for abstention as set forth above are placed on the public record. Finally, you ask whether Section 3(e) of the Ethics Act would impose any restrictions on an individual who might resign from public office and then apply for grant funds. Section 3(e) of the Ethics Act requires that no public official could represent a person with or without compensation on any matter before the governmental body with which he had been associated within the first year after he leaves public office. The Ethics Act does not and this Commission has not been inclined to interpret the Act to restrict an individual from representing his own personal interest except to acquire a contract within the first year after he leaves governmental service. See Lloyd, 80 -040. Where an individual is applying for funds for himself which are generally available to the public and where he did not "mold" the program to benefit himself individually or otherwise through his votes on other applications insure the availahility of funds when he leaves office, it would be inappropriate to limit his right to seek such funds for his personal residence even within the first year after he leaves public office and even with respect to the governmental body with which he was associated. Accordingly, should the Councilmen in question resign and should they seek grants to rehabilitate their own personal dwellings, an application could be presented to the governmental body with which they had been associated within the first year after they leave the Borough Council. John S. Toohey, Esquire March 1, 1982 Page 5 V. Conclusion: Section 3(c) of the Ethics Act is inapplicable since the contract in question would not be made between the Borough and the Borough Councilmen. Section 3(c) of the Ethics Act does not conflict with the provisions of the Borough Code in this respect and, therefore, should not be deemed to supersede any provisions of the Borough Code. The directions as to abstention from participating in the Borough's decisions on establishing the criteria for the program so as to "mold" the program or to actually produce benefits for oneself and as =to awarding grants /funds must be met to insure compliance with Section 3(a) of the Ethics Act. A Councilman - applicant should disclose and disseminate information as to his application and abstain as discussed above for the entire fiscal year(s) associated with his applicatior4. If the Councilman were to resign and to apply for funds under a program which would otherwise be available to members of the general public, Section 3(e) of the Ethics Act would not prohibit presenting such an application to the governmental body with which the Councilman had been associated, even within the first year after he leaves public office where that application is made with respect to the personal individual dwelling unit of the former public official and where while in office, the official did not "mold" the program so as to benefit himself individually or otherwise use his votes or influence, while in office, to insure that funds would be available to him or for his use upon leaving office. Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance of the advice given. This letter is a public record and will be made available as such. Finally, any person may request within 15 days of service of the opinion that the Commission reconsider its opinion. The person requesting reconside- ration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. SSC /rdp LC C.h 6A.3 p .± c.G\c SoG.nne. )aINZS Lc o-n. k-r; c k ) � n s 4 1 G. _ By the Commission, PAUL J. ,SMITH Chairman K.,1( b din; , L s 4- 12o b -z'-I- L. k- 1Ca 11 -4-''