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HomeMy WebLinkAbout02-600 EisterRobert A. Snyder, Jr. Councilman, City of Sunbury 225 Market Street Sunbury, PA 17801 ADVICE OF COUNSEL September 27, 2002 02 -600 Re: Conflict; Loan /Grant Program; Participation by Public Official /Public Employee; Council Member; City; Section 8 Housing Subsidies; Housing and Urban Development. Dear Mr. Snyder: This responds to your letters of August 12, 2002, and August 30, 2002, by which you requested advice from the State Ethics Commission. Issue: Whether, pursuant to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 I'a.C.S, § 1101 et seq., city council members or members of their immediate families may rent properties in the city and accept Section 8 housing authority rent subsidy payments through the city housing authority. Facts: As a Member of the Council of the City of Sunbury ("City"), you seek an advisory on behalf of yourself and Council Member James R. Eister ("Eister"). The question you pose is whether as property owners in the City, you or members of your immediate families may rent your properties and collect Section 8 HUD subsidies through the Sunbury Housing Authority. Discussion: It is initially noted that pursuant to Sections 1107(10) and (11) of the i - 65 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. As Members of the Council of the City of Sunbury, you and Eister are "public officials" as that term is defined in the Ethics Act and hence you and Eister are subject to the provisions of that 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 Snyder /Eister, 02 -600 September 27, 2002 Page 2 (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 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), (j). 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 Snyder /Eister, 02 -600 September 27, 2002 Page 3 65 Pa.C.S. § 1102. In applying the above provisions of the Ethics Act to your inquiry, Section 1103(a), which pertains to conflicts of interest, shall be considered first. 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. 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 or grant 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. Based upon the facts which you have submitted, it would appear that the Section 8 Program is administered through the Sunbury Housing Authority and not through the City. Assuming there would be no administrative involvement by the City or by you as Council Members, Section 1103(a) of the Ethics Act would impose no prohibition on your seeking HUD subsidies. Further, in that your question of renting and accepting Section 8 rent subsidies relates to your conduct and Eister's conduct in your private capacities as landlords and not as public officials, and also relates to the conduct of immediate family members who are third parties, such question is beyond the jurisdiction of the State Ethics Commission, which cannot interpret HUD regulations, and therefore, cannot be addressed herein. 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 Snyder /Eister, 02 -600 September 27, 2002 Page 4 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 Code of Federal Regulations or the respective municipal code. Conclusion: As Members of the Council of the City of Sunbury, you and Eister are "public officials" subject to the provisions of the Public Official and Employee Ethics Act, ('Ethics Act "), 65 Pa.C.S. § 1101 et seq. Regarding your question as to whether as property owners in the City, you or members of your immediate families may rent your properties and collect Section 8 HUD subsidies through the Sunbury Housing Authority, Section 1103(a) of the Ethics Act would impose no prohibition on your seeking HUD subsidies where it would appear that the Section 8 Program is administered through the Sunbury Housing Authority and not through the City. Further, in that your question of renting and accepting Section 8 rent subsidies relates to your conduct and Eister's conduct in your private capacities as landlords and not as public officials, and also relates to the conduct of immediate family members who are third parties, such question is beyond the jurisdiction of the State Ethics Commission, which cannot interpret HUD regulations, and therefore, cannot be addressed herein. 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