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HomeMy WebLinkAbout92-552Ms. Elizabeth A. Buehl Wood Lane Langhorne, PA 19047 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 4, 1992 92 -552 Re: Conflict, Grant Program, Participation by Public Official /Employee, Airport Authority Member, Owner and Operator of Private Airport. Dear Ms. Buehl: This responds to your letter of February 1, 1992, in which you requested advice from the State Ethics Commission. Issue: Whether a member of an airport authority under the Public Official and Employee Ethics Law may participate in grant programs administered by the state and federal government where the airports which the member oversees as an authority member also apply for such funding. Facts: As a Member of the Central Bucks County Airport Authority which oversees the management of the Quakertown and Doylestown Airports, and as the joint owner and operator (with your husband) of Buehl Airport located 48 nautical miles from the above two airports, you seek the advice of the State Ethics Commission. The Quakertown and Doylestown Airports are part of the state and federal reliever system and therefore are able to receive funds from these sources to improve their airport facilities so that they will be safe and standardized in the specifications outlined by the state and federal government. As a privately owned public use airport, Buehl Airport is also a state reliever and is eventually planning to become a federal reliever airport. You state that the selection of airports for state and federal funding is in part determined by the state and federal government's determination of their need to improve their safety for retaining their airport licensing, their ability to continue and progress as an airport, and their appropriateness of request suited to the program priorities selected during a specific year. You also state that generally, publicly owned airports that are public use are preferable for funding because of their ability to move forward financially as an airport. Ms. Elizabeth A. Buehl March 4, 1992 Page 2 Based upon the above circumstances, you ask whether you would have a conflict of interest. You point out that all eligibility forms are completed by the Airport Authority's administrative secretaries, and that final inspections are completed by Federal Aviation Administration Inspectors or by State Aviation Inspectors, whichever would be applicable for the given situation. You have submitted two photocopied pages consisting of the criteria which both the state and federal government use in their selection of airports for funding, which documents are incorporated herein by reference. Discussion: As a Member of the Central Bucks County Airport Authority, you are a "public official" as that term is defined in the Ethics Law and hence you are subject to the provisions of that Law. 65 P.S. §402; 51 Pa. Code S1.1. 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 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 Ms. Elizabeth A. Kuehl March 4, 1992 Page 3 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 ' 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. 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 anything 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 respofise to the question presented. The following terms are defined in the Ethics Law: Ms. Elizabeth A. Buehl March 4, 1992 Page 4 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. "Governmental body with which a public official or public employee is or has been associated." The governmental body within State 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. "Immediate family." A parent, spouse, child, brother or sister. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. Ms. Elizabeth A. Buehl March 4, 1992 Page 5 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 Central Bucks County Airport Authority is the governmental body with which you are associated, Section 3(f) would not apply in this case because the contract(s) for Buehl Airport would be with the Commonwealth of Pennsylvania and potentially the federal government, neither of which would be the governmental' body with which you are associated. 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. Similarly, the Commission has held that a public official /public employee may not use his office to the detriment of those competing for such funding or participation in a program. Pepper, Opinion 87 -008. 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, 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; Ms. Elizabeth A. Buehl March 4, 1992 Page 6 . 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. Thus, in your capacity as a member of the Central Bucks County Airport Authority, you would have a conflict of interest as to any matters before the Authority involving such state and federal funding for which Buehl Aiport competes. Pursuant to Section 3(j), in each instance of a conflict of interest, you would be required to abstain from any participation of any nature whatsoever, and to publicly disclose your abstention - and the reasons for -same, both orally and by filing a written memorandum with the secretary recording the minutes. Expressly conditioned upon the assumption that your proposed conduct would be in conformance with the above criteria, you may apply for and participate in the benefits associated with the state and federal reliever system, including funding from these sources. - Ms. Elizabeth A. Buehl March 4, 1992 Page 7 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 haw; Specifically not addressed herein is the applicability of the Code of Federal Regulations, the Municipality Authorities Act, or the respective municipal code. Conclusion: As a Member of the Central Bucks County Airport Authority, you are a public official subject_to the provisions of the .Ethics Law. Section 3(a) of the Ethics Law would - not preclude you from applying on behalf of Buehl .Airport for a. State or federal grant as a participant in the state and /or federal reliever system provided you- played no role in establishing-the criteria under which the program would operate, played no role in implementing the criteria for selecting applicants,: layed`mo role in selecting or reviewing applicants, . used •no con €identiai information and finally had no involvement with `: the administration of the program. You would have a conf l.,i.ct of interest as to any matter before the Central Bucks. • Countyy_ Airport Authority involving such state and /or federal funding for which Buehl Airport competes. In each instance of a. "conflict . io'f interest, you must abstain from any participation of ;*ny whatsoever and you must observe the disclosure requirements of Section 3(j) set forth above. You may not use the authority, pf office to the detriment of competitors for _such 7-funding, including the Quakertown and Doylestown Airports "presently subject to oversight by the Central Bucks County Airport Authority. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), this Advice is a.compl 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. Final reason to Commission Commission Commission - " 1 ly, if you disagree with this Advice -or if you have any challenge same, you may request that :the full review this Advice. A personal, appearance before the will be scheduled and a formal Opinion from the will be issued. Any such appeal must be in writing Ms-.- Elizabeth A. Buehl Mph 4, 1992 Page 8 and idust be received at the Commission, within 15 days of the date of this Advice pursuant to 51 Pa. Code §2.12. S4ncerely, Vincent 7. . Dopko Chief Counsel