HomeMy WebLinkAbout87-008 PepperM. Duke Pepper Jr.
Assistant Counsel
D. E. R.
Fulton Building
P.O. Box 2063
Harrisburg, PA 17104
Dear Mr. Pepper:
I. Issue:
II. Factual Basis for Determination:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17!20
OPINION OF THE COMMISSION
DATE DECIDED: 12/14/87
DATE MAILED: 12/22/87
87 -008
Re: Grant Program, Participation by Public Official, Conservation District
Director
This responds to your letter of October 16, 1987, in which you requested
an opinion from the State Ethics Commission.
Whether Conservation District Directors may participate in a
grant program which is administered by county conservation districts under the
State Conservation Law.
You state that you represent the class of Conservation District Directors
who generally serve on a voluntary basis and who are seeking an opinion
relative to their participation in a financial assistance funding program
which is administered by the county conservation districts, hereinafter
District. You state that if Directors may not participate in the financial
assistance funding program, it would be difficult to attract volunteers to
serve as Directors. The Directors do extensive missionary work at the local
level as an aid to Department of Environmental Resources (DER). The Directors
provide specific services to DER such as implementing the Clean Streams Law,
the Soil and Erosion Control Program, etc. You also state that if there is a
possible ethical problem, those District Directors, who would want to
participate in the financial assistance funding program, could.recuse
themselves from any review or participation in matters relating to the
financial assistance funding program.
M. Duke Pepper, Jr.
Page 2
The State Conservation Commission was established pursuant to the
Conservation District Law of December 19, 1984, P.L. 1.145, No 221, as amended
and reenacted, 3 P.S. §849 et. seq. The State Conservation Commission,
hereinafter Commission, has all the powers that are provided for commissions
in the Administrative Code of 1929. The Commission consists of the Secretary
of Environmental Resources, the Secretary of Agriculture, the Dean of the
College of Agriculture of the Pennsylvania State University and four farmer
members who are appointed by the Governor subject to Senate confirmation, The
Governor~ may also appoint two puhlic members to the Commission subject to
confirmation by the Senate. The State Conservationist of the Soil
Conservation Service. United States Department of Agriculture and the
Associate Director of the Cooperative Extension Service of the Pennsylvania
State University are designated as associate non - voting members to the
Commission. The Commission has the power and duties to offer assistance to
District Directors, to provide information to the said District Directors, to
approve and coordinate programs of the Districts, to secure cooperation and
assistance from other governmental agencies, to disseminate information
concerning activities and programs of the Districts, to accept contributions
of money, services and materials for land and water management, to designate
organizations within the county that may act in nominating persons for
appointment as Directors, to approve applications for projects and recommend
planning priorities and to provide assistance through the Districts to
environmental and advisory councils. Pursuant to the Conservation District
Law, a county governing body may make a resolution to declare said county as a
Conservation District. After a county is declared to be a District, the
District shall be created and be constituted as a public body corporate and
politic exercising public powers of the Commonwealth as an agency thereof. 3
P.S. §853(2). The Board of Directors of a District consists of seven members
appointed by the county governing body: one member will be from the county
governing body; two to four members will be farmers and two to four members
w i l l be public members. 3 P.S. §854. The District Director, appointed by the
county governing body, may not'receive any compensation other than traveling
expenses. The other members of the Board of Directors shall serve without pay
unless requested and approved by the Commission.: The Directors may be
reimbursed for actual and necessary expenses incurred in the performance of
their official duties. 3 P.S. §855.
The District Directors shall have the following powers and duties: to
conduct surveys, investigations and research relative to soil erosion and
preventive control measures; to employ personnel to conduct operations of the
District; to carry out preventive and measures within the District; to
cooperate and enter into agreements for financial aid to any" agency, be it
governmental or otherwise, or to an occupier of land within the District; to
acquire realty or personalty or options for same; to make available to land
occupiers within the District, agriculture and engineering machinerj. and
equipment, fertilizer, seeds and seedlings; to construct and improve and
maintain structures which are used relative to the operations of the District;
M. Duke Pepper, Jr.
Wage 3
to assist and advise owners and occupiers of land regarding implementation for
storm water management, water use, water pollution control and soil erosion
and conservation matters; to assist and advise county and municipal
governments in subdivisions and land development reviews; to conduct
educational programs relative to soil and water conservation; to accept,
subject to approval, any authorizations delegated by municipal, county, state
or federal government; to sue or be sued; to seek contributions of money
relative to services and materials provided by the operations of the District;
to accept contributions; to sponsor projects under various programs; to enter
public or private property to make such inspections as are necessary and to
establish a program of assistance to environmental advisory councils.
The Commission has established a financial assistance funding program,
hereinafter FAFP, pursuant to 25 Pa. Code §83.141 et. seq. Eligibility for
cost - sharing funds under FAFP is limited to applications in the project area
of the participating District. The Commission will execute an agreement with
the participating Districts specifying the terms and conditions for receiving
and distributing the cost -share funds, the amount of which will be annually
determined by the Commission. The District, in turn, will utilize the funds
by entering into a Best Management Practice, hereinafter BMP, agreement with
landowners. Subject to certain exceptions, a landowner must implement and
maintain the plan system; otherwise he will be required to refund the state
cost -share monies provided for under the agreement to the District. Lastly,
the Commission monitors compliance with the management program through
periodic inspections.
In order for an individual landowner to be entitled to FAFP assistance,
the individual must be in a location so designated by the Commission. The
landowner is eligible for a cost -share reimbursement not exceeding 80% of the
total funding from all federal and state sources relative to the installation
of the BMP. Reimbursement is made after there is a certification that the BMP
was installed according to program standards and verification is provided by
the landowner as to cost. It is an established practice to encourage
landowners located in an approved area to participate in the grant program.
After a landowner has signed up for the program, technical personnel are
assigned by the District to conduct an on farm assessment of the problems. If
the problem is documented, the District then determines priority of the
applications and a selection order for funding. A District technician then
develops a nutrient management program and selects BMP'S necessary to correct
the problem. An agreement is then entered and implementation occurs.
The function of the District Directors is to review the "applications for
eligibility and determine priority of the applications. Priority selection is
either high or low depending upon whether there is a critical nutrient
problem. Although the initial determination as to priority is made_by staff,
the District Directors then select the order of priority for receiving
cost -share funds from the applications in the high priority category. The
^s also establish the cost- sh?:re rates which may not exceed the maximum
M. Duke Pepper, Jr.
Page 4
established by the Commission. The District Directors are also responsible
for technical aspects of the program, such as heeds determination, practice
design, layout and installation verification according to program standards
and specification.
Under the above facts and circumstances, you ask whether the District
Directors may participate in the FAFP program which is administered by the
District.
III. Discussion:
Initially, the jurisdiction of this Commission is limited to rulings
under the Ethics Act. Thus, this Commission will not and cannot address the
propriety of or answer to any questions relative to the propriety of conduct
in light of any code, statute (federal or state), regulations, or ordinance or
other code of conduct other than the Ethics Act. However, this Commission may
provide a ruling under the Ethics Act because District Directors are "public
officials" as that term is defined in the Ethics Act. See 65 P.S. 402. 51
Pa. Code §1.1.
The fact that a public official serves in a voluntary, non - compensated
basis does not change their status in terms of the applicability of the Ethics
Act.
Section 2. Definitions.
"Public official." Any elected or appointed official in
the Executive, Legislative or Judicial Branch of the State
or any political subdivision thereof, provided that it
shall not include members of advisory hoards that have no
authority to expend public funds other than reimbursement
for personal expense, or to otherwise exercise the power
of the State or any political subdivision thereof.
"Public official" shall not include any appointed official
who receives no compensation other than reimbursement for
actual expenses. 65 P.S. 402.
In Snider v. Thornburgh, 469 Pa. 159, 436 A.2d 593 (1981), the
Pennsylvania Supreme Court held the definitional phrase "public official"
unconstitutional insofar as it operated to exempt appointed /non - compensated
officials from Ethics Act coverage. Thus, the Court's decision had the effect
of removing the appointed /non - compensated exclusion from the Ethics Act.
Under the Ethics Act, this Commission must observe the stated purpose of
that Act which is to strengthen the faith and confidence of people in their
government by assuring the public that the financial interests of the holders
of or candidates for public office present neither a conflict nor the
Duke Pepper, Jr.
Page 5
appearance of a conflict with the public trust. See Section 1 of the Ethics
Act, 65 P.S. 401. There are specific provisions of the Ethics Act which must
he reviewed in this situation. Those provisions will he discussed more fully
below. The Sections of the Ethics Act which will he discussed are Sections
3(a), (b) and (c) of the Ethics Act, 65 P.S. 403(a), (b) and (c),
respectively.
The provisions in Section 3(c) of the Ethics Act will first be addressed.
Section 3(c) of the Ethics Act provides:
Section 3. Restricted activities.
(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).
From the facts outlined above, it is clear that there will be a
'contract" between District Directors as public officials and the District.
Thus, the provisions of Section 3(c) of the Ethics Act would apply and require
that any contract in excess of $500 between a public official and a
governmental body must be made only after an "open and public process." This
Commission has interpreted this provision to apply and to require an "open and
public process" when the particular public official seeks to contract with the
"governmental body" with which he is "associated." See Bryan, 80 -014 and
Lynch, 79 -047. The governmental body with which the District Directors would
be "associated" is the District.
Thus, assuming, for purposes of this advice, that a contract would be
made between the District and a District Director pursuant to the provisions
of this Program, Section 3(c) of the Ethics Act would he applicable. Section
3(c) would require the following to he undertaken if a contract in excess of
$500 were to be made between a District Director and the governmental body
with which he is associated:
1. prior public notice of the contract possibility;
2, public disclosure of applications and contracts considered; and
public disclosure of the award of the contracts.
M. Duke Pepper, Jr.
Page 6
Assuming that all of the guidelines as to an open and public process
mentioned will be met, if Section 3(c) of the Ethics Act is applicable to your
situation, this Commission must next consider the propriety of the proposed
conduct under other provisions of the Ethics Act. In this review, it must be
noted that this Commission does appreciate and recognize the concern that
arises where a public program, funded with public monies and administered
through a public agency, political subdivision, or governmental body is also
available to public officials and /or employees of that agency or governmental
body. This Commission also recognizes the public concern and criticism that
may arise if a public official or public employee who serves a governmental
body receives benefits under a program of this nature. Thus, their conduct
must also be reviewed in light of Section 3(a) of the Ethics Act and Section
3(b) of the Ethics Act.
Section 3(a) of the Ethics Act provides as follows:
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).
Further.
Section 3. Restricted activities.
(b) No person shall offer or give to a public official or
public employee or candidate for public office or a member
of his immediate family or a business with which he is
associated, and no public official or public employee or
candidate for public office shall solicit or accept,
anything of value, including a gift, loan, political
contribution, reward, or promise of future employment
rased on any understanding that the vote, official action,
or judgment of the public official or public employee or
candidate for public office would be influenced thereby.
65 P.S. 403(b).
Under these Sections of the Ethics Act and the opinions the Ethics
Commission, it is clear that the Ethics Act was primarily designed to restrict
the activity of a public employee or official where a conflict of interests
exists and to address situations where the appearance of a conflict with the
public trust may arise. However, the opinions of the Ethics Commission
indicate that the Ethics Act was not designed nor should it be interpreted to
preclude public officials or public employees from participating in programs
M, Duke Pepper, Jr.
Page 7
which might otherwise be available to them as citizens. See Toohey, 83 -003;
Balaban, 83 -004 and Coploff /Hendricks, 83 -005. In these cases the Ethics
Commission indicated that a public official or public employee or a business
with which he is associated could participate in rehabilitation or grant
programs so long as that public official or public employee:
1. played no role in establishing the criteria under which the program
at issue was to operate, particularly with reference to the structure
or administration of the program;
2. played no role in establishing or implementing the criteria by which
selections for program participation are to be or were made;
3. played no role in the process of selecting and reviewing his or her
own application as to awarding grants or funds;
4. used no confidential information acquired during the holding of
public office or public employment to apply for or to obtain such
funds, grants, etc.
However, as to the first two criterias above, the past participation in
establishing the criteria would be permissible provided the District Director
at that time had no foreseeable expectation of his subsequent application for
a FAFP grant.
Furthermore, the Commission's opinions indicate that if the body with
which the public employee or official is associated is in any way involved in
the administering of the grant program or selecting who, among the applicants
should receive assistance or funds, the public employee or official within the
governmental body who is making an application to participate in such a
program or to obtain such funds, must abstain from all discussions, votes or
recommendations on his or her own application. Additionally, such a public
official or public employee should also abstain from participating in matters
before that governmental body which he or she serves as to the applications of
other individuals who may be similarly situated and who are applying for funds
or seeking to participate in the program. In this regard, a District Director
would be required to abstain from all discussions, votes or recommendations as
to FAFP applications wherein his or her negative vote or recommendation on
another person's application would work to his or her own benefit.
Essentially, the Commission seeks to eliminate the possibility that a
public official or public employee who is seeking such funds or seeking to
participate in these grant programs would be in a position to insure the grant
funds or the program benefits would be available to be applied for or applied
to for his own benefit. Thus, a public official or public employee.:in such a
situation should refrain from participating in making decisions or
- -- ommendations about the program and regarding distribution of the
=«nds which might be available as a result of such a program. The
r +� iI)nc ' he
M. Duke Pepper, Jr.
Page 8
Based upon the facts, as outlined and stated above and the principles
applicable to this case, this Commission notes the valuable function which the
District Directors provide and concludes that they may participate in the
Program, as outlined above, without resigning from their positions or
relinquishing their roles as public officials. Under such circumstances, so
long as the required abstentions discussed above are observed, the District
Directors may apply for and participate in the benefits associated with this
Program.
In addition to the foregoing, the Ethics Act authorizes the State Ethics
Commission to address other areas of possible conflicts of interests. 65 P.S.
§403(d). The parameters of the types of activities encompassed by this
particular provision of law are generally determined through a review of the
intent of the State Ethics Act as set forth above. Thus, the Ethics Act was
promulgated in order to ensure the public that the financial interests of
officals do not conflict with the. public trust. In this respect, this Section
of the Ethics Act would also require the District Directors to observe the
restrictions noted above relative to the FAFP Program when an individual
Director applies for a grant under that Program.
IV. Conclusion:
District Directors, of county conservation districts are public officials
subject to the provisions of the Ethics Act. As such, the District Directors
are required to file the Statement of Financial Interests. The Ethics Act
presents no per se prohibition to the participation by District Directors in
grant programs administered by the county conservation district. However,
under Section 3(c) of the Ethics Act, if the contract is in excess of $500,
the following requirements must be met: prior public notice of the contract
possibility; public disclosure of applications and contracts considered and
public disclosure of the award of the contracts. Further, under Section 3(a),
(b) and (d), the District Directors could participate in the FAFP Program as
long as they: played no role in establishing the criteria under which the
program at issue was to operate, particularly with reference to the structure
or administration of the program; played no role in establishing or
implementing the criteria by which selections for program participation are to
be or were made although past participation in establishing the criteria would
he permissible provided the District Director at that time had no foreseeable
expectation of his subsequent application for a FAFP grant; played no role in
the process of selecting and reviewing his or her own application as to
awarding grants or funds; used no confidential information acquired during the
holding of public office or public employment to apply for or'to obtain such
funds, grants, etc.
M. Duke Pepper, Jr.
Page 9
Also, the District Directors would he required to abstain from all
discussions, votes or recommendations as to FAFP applications made by District
Directors as well as other individuals who would be similarly situated and who
would he applying for funds under FAFP. Lastly, a District Director would be
required to abstain from all discussions, votes or recommendations as to FAFP
applications wherein his or her negative vote or recommendation on another
person's application would work to his or her own benefit.
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.
By the Commission,
Z . i$ .i�Q.w 10 atiw�q
G. Sieber Pancoast
Chairman