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HomeMy WebLinkAbout92-630Michael M. Apfelbau , City of Sunbury 225 Market Street Sunbury., PA. 17 801 Re: STATE ETHICS COMMISSION 309 FINANCE BUILDING P,O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 18, 1992 Esquire 92 -630 Conflict, Grant Program, Participation by Immediate Family Member of _Public Official /Employee, City Code Administrator, Use of Authority of Office or Confidential Information. Dear Mr._Apfelbaum: This responds to your letter of July 30, 1992, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a city code administrator with-regard to his daughter's application for grant money distributed by the city's community development office, where the Code office Decomes involved in the grant program when the contractor or owner of the property suhmits an application for a permit to commence construction at the propelty, Facts: As Solicitor for the City of §u iry, ybti request an advisory from the State Ethics Commi.ssio on behalf of , a City employee, Mr. Larry Bradiga • . Brad en '+s the Code Administrator for the City of SuNlory. The' Code• iiis is •esponsible for the day to day p J,on o1 the bode Office in the City of Sunbury. _HA reports to the ` director' vf " -tle ° Department .9f Rublic Safety who is ultimately •respdn; j fps- ° the entire Department • and has the ' right to hire -.arid fire-"twithin t_he Department. Mr. Bradigan's da1'ter has ,submitted an app - ii' -inn for grant money distributed City's Comm pity ReVei t The funds are p oarid00 0- part of he CgmMi i y "beve •opment Block Grant Program sifixiglotated b 'the Pennsylvaniia - Department of y ,f Communit ;. - Tom .i le Zinn the ;off Administrator not make the decss3ron regard lasr 41,34 of funding; " `however, the Code Office berms involved in the grant program 'when the contractor or the Michael M. Apfelbaum, Esquire September 18; 1992 Page 2 Section 3 Restricted • • • Pwner of the Property submit* an application for a permit to CoM4ence eenst..ruction at the property. The application includes plans for construction which the Code Office reviews. After collstruction, the Code Office does a final inspection. The contractor or property owner is paid after completion of the Pr919et hi inci4des a final inspection. Yon note that COO administrator Bradigan could be removed frqua process in this speCific situation since the Code Office floes 11 4Ve st.Of to issue the permit and complete the inspections. upO4 the above, you request an advisory from the State EthiCP com4sP4.on, ' As Cede Administrator for the City of Sunbury, Mr. 'LerrY Prndig41 is a "PlabliO eMPloyee". as that term is defined in the Ethics taw and hence he is subject to the provisions of that Law. 65 P.S. §402; 51 11 4, Code 51,1. Sections 4(4), 4(f), and 3 (j) of the Ethics Law provide: (a) No pc official or public qmP shAll engage in COnduct that qohstAtutes a eonfliot of interes'4- (f) No rgaic offiOial or public emPloYee or Ilia spouse or child or any business tn, whieh the person Q' tas spouse or child iS 44R(Niated shall enter into any Centract valued at 45(10 er - store with the governmental body with which the public official or Public ekttployee IA - associated or any subcontract valued at We or more with any person who has been awar4ed C 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 subseqmeat public disclosure of all proposals considerid and contZaOts awarded. In such a onset 'eke public official or public employee shall not haNm any wiwerY4A or overall, responsibility feT the utEtlemen.taktion oz administration of. the costract, 44ay contract or subcontract maw in, violation of thie nu,bwitctton shall be voptablie by a cc URt ot compittoot lax:Lad/Calm Wuit: is, commenced within Se days of the Michael M. Apfelbaum, Esquire September 18, 1992 Page 3 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. In addition, Sections 3(b) and 3(c) of the Ethics Law pr wide in part that no person shall offer to a public offici . lje i 10 ree anything of monetary value or no public officialIeigplq ee ,. sha11. solicit or accept any thing of monetary value bated the understanding that the vote, official acion, jwdgpznent.of the public official /employee would be influenced'tlheieb . Refe'ence is made to these provisions of the law ;19t tq 4.mply t there has been or will be any transgression there •t i iaerei •• to prbvide 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 Michael M. Apfelbaum, Esquire September 18, 1992 Page 4 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 i general public or a subclass consisting of=ian ndustry, occupation or other group which includes the public official or pubic 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 ;inecessary to the performance ,of duties and responsibilities unique to a particular public office position of :public employment. "Immediate family." . 'A patient, spouse, child, brother or sister: 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 l Cityr = of ° Sunbury is the governmental body with which Mr. Bradigai is associated, Section 3(f) would apply in this -case.' Assuming that a contract or sub - contract would be made between Mr. Bradigan's daughter 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 valued at $500.00 or more: 1. prior public notice of the contract possibility;.- 2. public disclosure of applications L ur i d : contracts considered; 3. public disclosure of the award of the contracts; and 4." no supervisory or overall responsibility for the implementation or administration of the contract or sub- contract by the public official /employee. Michael M. Apfelbaum, Esquire September 18, 1992 Page 5 We will now address the propriety of the proposed conduct under Section 3(a of -the Ethics Law. 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 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. However, we believe that as a general rule the Ethics Law was not enacted nor should it be interpreted to preclude public officials /employees or their immediatei family members from participating in programs which might otherwise be available to them as citizens. Wolff, Opinion 89 -030; Woodrina,•Opinion'90 -001. In order to insure that a public official or employee is not in a conflict when he or a member of his immediate family 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 fdnds, grants, etc., and 5. abstain, publicly disclose and file a memoranditn -supervisor ith ahe rvisor or a "rson Fes onsible fbr recd " ' � es Pe P P r ,° `the� . �m nnt under Section 3(j) of the Ethics Law ' a es' where £ie b1 ic official/ employee is associated with"admi lsteRibit f+ e giant program not or rehabilitation ro only �i p g y as to hid w ows or his immediate family member's application 4 bttt -as rto s nilarly situated individuals who .might be competing ° far available funds. In cases where Sectibh. cf) is appiioab - the public official /employee wouyil be prdlt .bitcd from an'y supervisory or overall responsibili„ y as to tl*. cbh rac't o** program. In this case, you have Ou e4 1$ Commission that Code Administrator Sradiggan "does not make" the decision regarding allocation of funding. Indeed, the facts which you have submitted reflect that the only ' way in which Mr .. would potentially be "involved .: his daughter's application" would be by virtue of the fact that the Code : Office reviews applications for permits to commence construction at such properties and also perform : #ina1 Michael M. Apfelbaum, Esquire September 18, 1992 Page 6 inspections. The contractor or property owner is not paid until after the project is completed and the final inspection has been performed. - It is clear that Mr. Bradigan would have a conflict of interest which would preclude his participating,` directly or indirectly, with regard to his daughter's application for grant money, any application for a permit to commence construction, or any inspection, In each instance of a conflict of interest, such as .. in thin specific instance, Mr. Bradigan as a public employee :would be regu.lred to abstain from any participation of any nature whatsoever. He would additionally be required to fully satisfy the disclosure requirements of Section 3(j) as set forth above. In this regard, you have assured the Commission that Code A mini atrats r Bradigan could be removed from any involvement with 'regard tQ his daughter. The degree to which Mr. Bradigan would be required to abstain would not only preclude his direct involvement in the matter, but would also preclude his exerting any influence of any nature whatsoever on behalf of his daughter. 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 respective municipal code. Conclusion; As Code Administrator for the City of Sunbury, Mr. Larry Bradigan is a public employee subject to the provisions of the ethics. Law. With regard to his daughter's application for grant money distributed by the Community Development Office, Mr. Bradigan may not play any role in establishing the criteria under which the program would operate; play any role in implementing the criteria for selecting applicants; play any role in selecting or reviewing applicants; or use any confidential information or have any involvement with the atdministati ©n of the program. Section 3(a) of the Ethics Law would specifically preclude - Mt. Bradigan frOm participating in any involvement of the Code Office with regard to his daughter, either directly or indirectly. In each instances of a conflict of interest, Mr. Bradigan would be required to abstain from any participation of any nature whatsoever and to fully eatisf r the disclosure requirements of Section 3(j) as set forth above. The requirements of Section 3(f) of the Ethics Law noted above,, to the extent aepplicable, must be ob *e .v vd.. Lastly, the Frrpriet it of the proposed. conduct has only been add a sed under the Ethics Lair. Pursuant to Swtio : 7(11), this Advice is a complete• defense in anx eatemPamont proceeding initiated by the Commission, and evi der* of faith, conduct in any other civil or criminal Michml M. ApEeIhnum, . Esquire September 1j, 199 Page 7 proceeding provi:.dimg the requestor . has disclosed truthfully all the material feats er4. 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, y,om,may request that the full Commission review this Advice. A personal appearsAce before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in welting and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa Code '2.12. Sincerely, Vincent . Dopko Chief Counsel- <�