HomeMy WebLinkAbout96-579 NeffMichael M. Apfelbaum
City Solicitor
City of Sunbury
225 Market Street
Sunbury, PA 17801
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
August 7, 1996
96 -579
Re: Conflict, Grant Program, Participation by Public Official/ Employee, City,
Councilmember, Director of Street Department, Community Development Block
Grant Program.
Dear Mr. Apfelbaum:
This responds to your letter of June 20, 1996, in which you requested advice
from the State Ethics Commission.
Issue: Whether a City Councilmember under the Public Official and Employee
Ethics Law may participate in a grant program administered by the City as part of a
program to provide sidewalks.
Facts: As Solicitor for the City of Sunbury, you have been authorized by City
Councilmember Richard B. Neff (Neff) to request an advisory from the State Ethics
Commission on his behalf.
Neff was elected to the City Council in 1995 and sworn into office on January
1, 1996. Neff is the Director of the City's Street Department and is also active in the
Sunbury Volunteer Fire Department. As a Councilmember, Neff receives $ 1,200 per
year.
Neff is considering applying for a grant from the City's Community Development
Block Grant Program as part of a program which will provide sidewalks throughout the
City. You state that Neff has no discretionary authority concerning the Community
Development Block Grant Program except for the general allocation of funds and does
not have the authority to select who receives sidewalk grants. That decision is made
by the Community Development Coordinator and is based solely upon income. Neff
is seeking an advisory as to any potential conflict of interest as to his application for
and receipt of the sidewalk grant.
Discussion: As Councilmember for the City of Sunbury, Neff is a "public
official" as that term is defined in the Ethics Law and hence he is subject to the
provisions of that Law. 65 P.S. §402; 51 Pa. Code §11.1.
Aofelbaum /Neff, 96 -579
August 7, 1996
Page 2
Sections 3(a), 3(f), and 3(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.
(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 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.
Aofelbaum /Neff, 96 -579
August 7, 1996
Page 3
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 been 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:
Section 2. Definitions.
"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 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.
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
not 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 City
of Sunbury is the governmental body with which Neff is associated, Section 3(f) would
apply in this case.
Assuming that a contract or sub - contract would be made between Neff and the
City of Sunbury pursuant to the provisions of this Program, Section 3(f) of the Ethics
Law would impose the following requirements if the contract or sub - contract is
$500.00 or more were to be made between Neff and the governmental body:
1. prior public notice of the contract possibility;
2. public disclosure of applications and contracts considered;
3. public disclosure of the award of the contracts; and
Aofelbaum /Neff, 96 -579
August 7, 1996
Page 4
4. no supervisory or overall responsibility for the implementation or
administration of the contract or sub - contract by the public
official /employee.
We will now address the propriety of the proposed conduct under Section 3(a)
of the Ethics Law. In this review, we note 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; Woodrinq, Opinion 90 -001.
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 must 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;
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/ employee is associated 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.
Aofelbaum /Neff, 96 -579
August 7, 1996
Page 5
Expressly conditioned upon the assumption that Neff's actions would be in
conformance with the above criteria, he may apply for and participate in the benefits
associated with the Program.
The propriety of the proposed conduct has only been addressed under the Ethics
Law; the applicability of any other statute, code, 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 or the respective municipal code.
Conclusion: As a Councilmember for the City of Sunbury, Neff is a public
official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law
would not preclude Neff from applying for a Program grant 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. The requirements of Section 3(f) of the Ethics
Law noted above, to the extent applicable, must be observed. Lastly, the propriety of
the proposed conduct has only been addressed under the Ethics Law.
Pursuant to Section 7(11), this 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, providing 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.
i cereiy,
txt:Ail i 6/
Vincent J. s..ko
Chief Counsel