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HomeMy WebLinkAbout02-595 JonesWilliam T. Jones, Esquire Levy & Preate Scranton Electric Building 507 Linden Street, Suite 600 Scranton, PA 18503 Re: Conflict; Public Official /Public Employee; Borough Council Member; Immediate Family Member; Participation by Borough Council Member or Immediate Family Member in Borough Sidewalk and Curb Subsidization /Reimbursement Program; Vote. Dear Mr. Jones: ADVICE OF COUNSEL September 5, 2002 02 -595 This responds to your letter of August 1, 2002, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. X01 et seq., presents any prohibition or restrictions upon a borough council member with regard to his own participation or the participation of a family member in a borough program which provides residential property owners in the borough with a borough subsidy for the construction and installation of new sidewalks and curbs. Facts: As Solicitor for the Borough of Taylor ( "Borough "), located in Lackawanna Cuny, Pennsylvania, you seek an advisory on behalf of the Members of the Taylor Borough Council ( "Borough Council "). You have submitted facts which may be fairly summarized as follows. The Borough Council has instituted a Sidewalk and Curb Program ( "Program ") which subsidizes residential property owners in the borough for the construction and installation of new sidewalks and curbs. Under the Program, the Borough pays one -half of the cost of such improvements in front of a residential dwelling, up to a maximum amount of $4,000. Under Phase 1 of the Program, the Borough allocated $50,000 of Borough funds for such improvements. The properties were to be selected based upon applications and a lottery. However, because the initial applications were for approximately $50,000, all original applicants were accommodated. You state that additional inquiries for participation came to the Borough after the deadline for applications, and that due to a strong public response, the Borough allocated additional funds for Phase 11 of the Program. You have submitted copies of the following documents, all of which are incorporated herein by reference: the Borough's Resolution adopted May 8, 2002, authorizing the Program for 2002 -2003 and the Adoption of Regulations Pertaining to Same; Regulations for Jones 02 -595 September 5, 2002 Page 2 the Program for 2002 -2003; the Borough's Resolution adopted June 12, 2002, authorizing Phase II of the Program for 2002 -2003 and the Adoption of Regulations Pertaining to Same (unsigned); and Phase 11 Regulations for the Program for 2002 -2003. You ask the following specific questions: 1. Whether pursuant to the Ethics Act, the Council Members may participate in the Program, receive reimbursements under the Program, and vote on their own reimbursements; and 2. Whether pursuant to the Ethics Act, a Council Member may participate and vote on reimbursement to a mother, father, brother, sister, in -law, or other family member. Discussion: It is initially noted that pursuant to Sections 1107(10) and (11) of the i T,Z5 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requestor based upon the facts which the requestor 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. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent you have inquired as to conduct which has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may, and shall be addressed. The Members of the Borough Council are " ublic officials" subject to the provisions of the Ethics Act. 65 Pa.C.S. § 1102; 51 Pa. Code 11.1. Sections 1103(a) and 1103(j) of the Ethics Act provide as follows: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. (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 Jones 02 -595 September 5, 2002 Page 3 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. 65 Pa.C.S. §§ 1103(a), 0). The following terms that pertain to conflicts of interest under the Ethics Act are defined as follows: § 1102. 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. 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 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. sister. "Immediate family." A parent, spouse, child, brother or 65 Pa.C.S. § 1102. In applying the above provisions of the Ethics Act to your inquiry, it is initially noted that the stated purpose of the Ethics Act is to strengthen the faith and confidence of the people in their government by assuring the public that the financial interests of the holders of or candidates for public office do not conflict with the public trust. 65 Pa.C.S. § 1101. Section 1103(a) of the Ethics Act in particular prohibits a public official /public employee 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. The Commission recognizes that public concern and criticism may arise if a public official or public employee who serves a governmental body receives benefits under the very program which that governmental body administers. On the other hand, as a general rule, the Ethics Act was not enacted nor should it be interpreted to preclude public officials or public employees from participating in programs which might otherwise be available to them as citizens. Wolff, Opinion 89 -030; Woodrinq, Opinion 90 -001. Jones 02 -595 September 5, 2002 Page 4 In order to ensure that a public official or public employee does not have a conflict of interest when he, as a citizen, seeks to participate in a loan, grant, or subsidy /reimbursement program administered by the governmental body which he serves, he must: 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 and satisfy the disclosure requirements of Section 1103(1) above in cases where the public official /public employee is associated with administering the loan or grant program. The abstention and disclosure would be required not only as to his own application, but also as to similarly situated individuals with whom the public official /public employee might be competing for available funds. You have posed the following specific questions: 1. Whether pursuant to the Ethics Act, the Council Members may participate in the Program, receive reimbursements under the Program, and vote on their own reimbursements; and 2. Whether pursuant to the Ethics Act, a Council Member may participate and vote on reimbursement to a mother, father, brother, sister, in -law, or other family member. You are advised that as long as a Council Member observes the above restrictions and requirements, he may participate in the Program and receive reimbursements under the Program. However, under Section 1103(a) of the Ethics Act, a Council Member would have a conflict of interest as to voting to authorize payments /reimbursements to himself or to his immediate family member(s). A Council Member's immediate family members would include a spouse, child, parent, brother or sister, but would not include in -laws or other family members. In each instance of a conflict of interest, the Council Member(s) with a conflict would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. This Advice is limited to addressing the applicability of Sections 1103(a) and 1103(j) of the Ethics Act. It is expressly assumed that there has been no use of authority of office for a private pecuniary benefit as prohibited by Section 1103(a) of the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /employee 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. 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 Borough Code. Jones 02 -595 September 5, 2002 Page 5 Conclusion: The Members of the Taylor Borough Council ( "Borough Council ") are "public officials" subject to the provisions of the Public Official and Employee Ethics Act, ('Ethics Act "), 65 Pa.C.S. § 1101 et seq. A Borough Council Member may participate in and receive reimbursements under the Borough's Sidewalk and Curb Program ('Program "), which subsidizes /reimburses residential property owners for part of the cost of constructing and installing sidewalks and curbs, conditioned upon the assumption that such Council Member 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. Pursuant to Section 1103(a) of the Ethics Act, a Council Member would have a conflict of interest as to voting to authorize payments /reimbursements to himself or to his immediate family member(s). A Council Member's immediate family members would include a spouse, child, parent brother or sister, but would not include in -laws or other family members. In each instance of a conflict of interest, the Council Member(s) with a conflict would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(] of the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(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(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. Sincerely, Vincent J. Dopko Chief Counsel