Loading...
HomeMy WebLinkAbout90-001 WoodringBefore: Helena G. Robert W. W. Thomas G. Sieber Dennis C. STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Hughes, Chair Brown, Vice Chair Andrews Pancoast Harrington DATE DECIDED: February 23, 1990 DATE MAILED: March 6, 1990 Mr. Jesse C. Woodring, Chairman Redevelopment Authority of The City of Sunbury 225 Market Street Sunbury, PA 17801 90 -001 Re: Conflict, Grant Program, Participation by Public Official, Redevelopment Authority, Chairman, Pennsylvania Housing Finance Agency, Program Administrator employed by Authority. Dear Mr. Woodring: This Opinion is issued in response to your request of September 22, 1989. I. Issue: Whether the chairman of a redevelopment authority under the Public Official and Employee Ethics Law may apply for funds from the Federal Rental Rehabilitation Program which is administered by the Pennsylvania Housing Finance Agency when the executive director of the authority is also the administrator in charge of the rehabilitation program. II. Factual Basis for Determinations The City of Sunbury is participating in the Federal Rental Rehabilitation Program, hereinafter Program. Although the Program is administered by the Pennsylvania Housing Finance Agency, it is federally funded to provide aid to landlords in rehabilitating their residential dwelling units. You have recently made application to the Program for a property you own in Sunbury. Although you serve as Chairman of the Sunbury Redevelopment Authority, hereinafter Authority, that agency does not administer the Program for the city. In addition, you have no responsibilities nor do you participate in any decisions as to the Program. The Authority is not administering nor does it anticipate administering any funds or programs in the area wherein your building is located. During your Mr. Jesse C. Woodring Page 2 tenure with the Authority, neither you or the Authority played any role in targeting funds; in addition, there was no direct, indirect or advisory role in the Program. Kenneth L. Pick is both the Community Development Coordinator for Sunbury as well as the Executive Director of the Redevelopment Authority. Mr. Pick, as administrator in charge of the Program for the city, reviews all applications for the Program, ownership records, determines eligibility based upon established criteria, assists in the preparation of rehabilitation work write -ups, reviews requests for payment and prepares both pre - rehabilitation and project completion reports. Mr. Pick also prepares the city's funding applications which are based on Federal regulations. You also enclose photocopies of two letters from E. Eugene Brosius, Solicitor of the Authority and from Michael M. Apfelbaum, City Solicitor. Both letters address the propriety of participation in the Program by public official(s). Mr. Apfelbaum concluded that you and two other officials could not participate in the Program because of Section 3(a) of the Act 170 of 1978 as well as federal law which would prohibit, in his view, appointed officials with discretionary authority from receiving rental rehabilitation grants. However, Mr. Brosius opined that because the Authority had no responsibility for the establishment, administration or operation of this Program, you were not in a position to exercise any function or gain confidential information as to the Program and could apply, provided the same procedures were utilized as to all other applicants. Copies of a portion of the Federal regulations on the Rental Rehabilitation Grant Program as well as the 1989 Rental Rehabilitation Program of 1989 for the City and City Housing Rehabilitation Programs have been submitted. The submissions provide background information on the structure, implementation and administration of rehabilitation programs. Attachment 5 to the 1989 City Program sets forth certain criteria which are to be used in establishing application preference but there does not appear to be any numerical ranking system to arrive at comparative scoring for applications. In light of the above, you request an advisory as to whether your participation in the Program is prohibited by the Ethics Law. III. Discussion: As Chairman for the Sunbury Redevelopment Authority you are a public official as that term is defined under the Public Official and Employee Ethics Law of June 26, 1989, Act 9 of 1989. Accordingly, you are subject to the provisions of the Ethics Law and the restrictions therein are applicable to you. Mr. Jesse C. Woodring Page 3 Sections 3(a), (f) and (j) of the Ethics Law provide: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest.provides: (f) No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, 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. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. (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 Mr. Jesse C. Woodring Page 4 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 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 or no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will' be any transgression thereof but merely to provide a complete response to the question presented. The following terms are defined in the Ethics Law: "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 or 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. "Governmental body with which a public official or public employee is or has been associated." The governmental body within State Mr. Jesse C. Woodring Page 5 government or a political subdivision by which the public official or employee is or has been employed or to which the public official or employee is or has been appointed or elected and subdivisions and offices within that governmental body. Under the Ethics Law, we 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 do no present a conflict with the public trust. In applying the above quoted provisions of the Ethics Law to the instant matter, we will first consider the provisions of Section 3(f) of the Ethics Law. Since the Redevelopment Authority of Sunbury is the government body with which you are associated, Section 3(f) would not apply in this case because your contract would be with the City of Sunbury which is not the governmental body with which you are associated. We will now address the propriety of your proposed conduct under Section 3(a) of the Ethics Law. In this review, we note that we 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 or employees of that agency or governmental body. We recognize 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. It is clear that the Ethics Law, and in particular Section 3(a), was primarily designed to restrict the activity of a public official or employee from using the authority of office for private pecuniary benefit. However, we believe that as a general rule the Ethics Law was not enacted nor should it be interpreted to preclude public officials or employees from participating in programs which might otherwise be available to them as citizens. Wolff, Opinion 89 -030. In order to insure that a public official or employee is not in a conflict when he seeks to participate in a rehabilitation or grant program, he should observe the following: 1. play no role in establishing the criteria under which the program is to operate, particularly with reference to the structure or administration of the program; 2. play no role in establishing or implementing the criteria by which selections for program participation are to be made; Mr. Jesse C. Woodring Page 6 3. play no role in the process of selecting and reviewing applicants or in awarding grants or funds; 4. use no confidential information acquired during the holding of public office or public employment to apply for or to obtain such funds, grants, etc., and 5. abstain, publicly disclose and file a memorandum with the person responsible for recording the minutes under Section 3(j) of the Ethics Law in cases where the public official or employee is associated in any way with administering the grant or rehabilitation program not only as to his own application but as to similarly situated individuals with whom the public official /employee might be competing for available funds. In cases where Section 3(f) is applicable, the public official /employee would be prohibited from any supervisory or overall responsibility as to the contract or program. Through application of the above criteria, we seek to eliminate the possibility that a public official /employee who is seeking such funds or seeking to participate in these programs would be in a position to insure that the grant funds or the program benefits would be available for his own benefit. Thus, a public official or public employee in such a situation should refrain from participating in making decisions or recommendations about the program and regarding distribution of the limited funds which might be available as a result of such a program and comply with the disclosure requirements noted in Section 3(j) above. Expressly conditioned upon the assumption that you are in conformance with the above criteria, you may apply for and participate in the benefits associated with the Program. However, 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 move 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 3(j) 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. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, Mr. Jesse C. Woodring Page 7 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 Code of Federal Regulations. IV. Conclusion: The chairman of a redevelopment authority is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude a redevelopment authority member from applying for a rehabilitation grant by the city which is administered by the Pennsylvania Housing Finance Agency provided he played no role in establishing the criteria under which the program would operate, played no role in implementing the criteria for selecting applicants, played no role in selecting or reviewing applicants, used no confidential information and finally had no involvement with the administration of the program. Since the city community development coordinator, who administers the program and reviews applications and determines eligibility, is also an employee of the redevelopment authority, the chairman may not participate or take action as to the city coordinator if his application is approved and he receives benefits under the program. In addition, the disclosure requirements of Section 3(j) of the Ethics Law must be followed. Lastly, the propriety of the proposed conduct is only addressed under the Ethics Law. 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 on the advice given. such. This letter is a public record and will be made available as Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. By th- Comm'ssi elena G. Hughes, Chair