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HomeMy WebLinkAbout89-010 SmithDear Mr. Smith: 1989. I. Issue: STATE ETHICS COMMISSION . 3021 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Helena G. Hughes, Chair W. Thomas Andrews G. Sieber Pancoast Dennis C. Harrington Michael J. Washo DATE DECIDED: Julv 24, 1989 DATE MAILED: August 8. 1989 Mr. Gordon S. Smith 89 -010 Commonwealth of Pennsylvania Department of Community Affairs Erie Regional Office 3rd Floor - Rothrock Building 121 West 10th Street Erie, Pennsylvania 16501 Re: Conflict, Public Employee, Housing and Community Development Analyst II, DCA, Membership on National Committee for Housing Costs and Rural Housing, Membership with Home Builders Association, Realtors This Opinion is issued in response to your request of 28, Whether a housing and community development analyst-in the Department of Community Affairs under the Public Official and Employee Ethics Law may continue to serve as a volunteer on a national committee for housing and rural housing and also continue to serve as a non - voting liaison between a home builders association and realtors and the Department of Community Affairs. II. Factual Basis For Determination: Prior to your appointment to the Department of Community Affai3 (DCA) as a Housing and Community Development 'Analyst TI,, you were a land developer, home builder and active realtor. You.served on the Board of Directors of the Home Builders, Association of Northwest Pennsylvania and the State PRA Committees. You also acted as a liaison between the Home Builders and Realtors in 'Northwest Pennsylvania on matters concerning housing, mortgaging, environmental Mr. Gordon S. Smith Page 2 laws and other topics of common interest to the two organizations. In addition, you were appointed on a national level to the.Prgsident'a Special Committee for Housing Costs and Rural Housing and have served in a volunteer uncompensated capacity for the past nine Years, -After noting that you have not been active at any level since coming.to Commonwealth employment,, you indicate that you would like to continue serving on the Special Committee without cost to the Commonwealths of Pennsylvania so that you ay provide input on housing needs in when asked to do so and also to obtain current updated data to review from the national level. ,In addition, you would like to continue as a non - voting liaison between the Home Builders Association and Realtors, and possibly DCA, to offer input and receive data of importance concerning housing, land development laws, DER requfations, mortgage programs fair housing and homeless problems in Pennsylvania since all three organizations deal with these common problems. After noting that your superiors in Harrisburg and in the regional office are aware of your involvement with these committees, you enclose a job description and ask whetiier your duties and responsibilities would create a conflict under the Ethics Law. The job description for a Housing and Redevelopment Analyst II provides for the following responsibilities: "Review entitlement applications and initiate PERC's f¢r those that are approvable; identify deficiencies in entitlement applications and communicate these to applicants ftir resolution; review competitive applications and recommend those pro3ects worthy of approval ;, receive and process grantee requests for budget revisions and program. amendments; receive and review grantee program and financial status reports; identify projects that are not being implemented in a timely manner and recommend t r� technical assistance or remedial action; as needed, provide assistance to other Central /Regional Analysts and grantees in various areas of prograd compliance; conduct on -site technical assistance and project reviews, and report results to grantees; determine when projects are ready for the initiationof, closeout and coordinate and the closeout procedureSfforms ;, performs other duties assigned by the Housing/Redevelopment Manager." III. Discussion= As a Housing Redevelopment Analyst If in DCA you are a public employee as that term is defined under the Public Official and Employee Ethics Law of June 26, 1989, Act_9'of 1989. Accordingly, you are subject to the provisions of the Ethics Law and the restrictions therein are applicable to you. Section 3(a) ' of the Ethics Law provides: Nr. Gordon S. Smith Page 3 Section 3. Restricted Activitie$. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined under 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 or 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. "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, timer, employee or has a financial interest. 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 solicitor 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. Initially this Commission must determine whether any of these organizations to which you are a member is considered a business with which you are associated as that term is defined under the Ethics Act. As to the President's Special Committee for Housing Costs and Rural Mr. Gordon S. Smith Page 4 Housing, it is clear that such a federal governmental committee is not a business with which you are associated as that term is defined under the Ethics Law. As to the Home Builders Associations of Northwest Pennsylvania, you are a member of the board of directors of that association, and hence that is a business with which you are associated under the Ethics Law. Lastly, as to the Realtors, you have not specified your relationship with that entity and consequently we cannot determine based upon the limited information as to whether that is a business with which you are associated. As a general rule, the Ethics Law would prohibit a public official/employee from serving with a business or entity over which the public official or employee would have responsibilities as to regulating, inspecting, auditing, administering, licensing or some other activity which would be considered to be adverse to the position that he would hold as public official /employee. If the public official/employee is not in a position with some business or entity which is adverse, the Ethics Law would not per se preclude that individual from serving or being employed by the other entity or business provided there is no statutory or inherent incompatibility. The Ethics Law might be implicated if the public official/employee as a member or employee of the entity or business with which he is associated would somehow come in contact with his governmental body in an official capacity. In the instant matter, based upon a review of your job description, it does not appear that your position in the DCA is adverse to your position with the Home Builders Association or the Realtors and, as such, there is no per se conflict. Therefore, under the Ethics Law you may continue with your service on the President's Special Committee for Housing Costs and Rural Housing because it is not a business with which you are associated under the Ethics Law. In addition, you may serve with the. Home Builders Association and Realtors since your service with those agencies does not appear to be adverse to that of your position with DCA. However, if a situation . arises where either the Home Builders Association or Realtors would enter into some type of contractual negotiations with DCA or in situations where DCA and the other parties would become adverse to each other, you in your capacity as a Housing and Community Development Analyst II must remove yourself from that process and you must disclose the nature of your interest in a written memorandum to your superior. Lastly, 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 Act has not been considered in that they do not involve an interpretation of the Ethics Act. Mr. Gordon S. Smith Page 5 IV. Conclusion: As a Housing and Community Development Analyst II wi the Department of Community Affairs, you are a public employee subject to the provisions of the Ethics Law. Under Section 3(a) of the Ethics Law, you'would not be precluded from serving on the President's Special Committee for Housing Costs and Rural Housing and you would not be precluded from membership on the Home Builders Association or with the Realtors. However, if either, the Home Builders or Realtors enter into contractual relations with DCA or become involved in some type of adversarial situation, you must remove yourself from that process and disclose your conflict in a written memorandum to your superior. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(9)(i), this. Opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance of the evidence of the advice given. such. This letter is a public record and will be made available as Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. By t e Commies o elena.G. Hughes Chairman