HomeMy WebLinkAbout02-595-CL JonesWilliam T. Jones, Esquire
Levy & Preate
Scranton Electric Building
507 Linden Street, Suite 600
Scranton, PA 18503
Dear Mr. Jones:
ADVICE OF COUNSEL
October 25, 2002
02-595-CL
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; Clarification
of Advice; Advice of Counsel 02 -595.
This responds to your letter of September 20, 2002, by which you requested
clarification of Jones, Advice of Counsel 02 -595.
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: By letter dated August 1, 2002, you initially sought an advisory from the State
Ethics Commission. In response to your request, Jones, Advice 02 -595 was issued to you on
September 5, 2002, which Advice is incorporated herein by reference.
You now seek clarification regarding one particular conclusion in the said Advice.
Specifically, the Advice stated, "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." Jones, Advice 02 -595 at 5 (emphasis added).
In your most recent submission, you provide the following facts.
The Taylor Borough Council, which is comprised of seven members, established the
Program for the safe passage of the public along public rights-of-way. The entire Council
voted unanimously for the Program, which was also approved by the Mayor.
The Program is open on a Borough -wide basis to owners of residential properties who
would like to install or replace, in whole or in part, new sidewalks. The Program operates
Jones 02- 595 -CL
October 25, 2002
Page 2
under certain application rules and procedures, which apply to all participants. You state that
the criteria was established by Council. You further state that the selection process is neutral.
In order to ensure the safe passage of individuals, Council has, from time to time,
increased the amount allocated to the Program based upon the requests received, and will
presumably continue to increase the allocation in furtherance of its objective.
You state that the participants have frontage on the public rights -of -way, which do not
significantly vary in length There are approximately 74 applications for funds for sidewalks in
various stages of completion. You have submitted a spreadsheet showing the dimensions of
the sidewalks and cost to the Borough for the installation, which spreadsheet is incorporated
herein by reference.
You state, "As you will note on the attachment, application has been made for the
$66,005.00, of which approximately $50,000 was allocated for all applicants under Phase I,
and with respect to the additional $16,000, that will occur under Phase II of the project.
However, due to deaths or withdrawals of applications, the approximate [sic] $16,000 may be
accommodated under the $5,000 Phase II; absent same, Council will presumably appropriate
additional funds."
As to the above, you ask whether the Council Members may participate in the Program
when the Program criteria was established by the Council, and where the selection process is
neutral.
Discussion: As noted in Jones, Advice, 02 -595, the Members of the Borough Council
are "public officials" subject to the provisions of the Ethics Act.
As for your specific inquiry, you are advised that pursuant to Section 1103(a) of the
Ethics Act, the Council Members may not participate in the Program because, as ublic
officials, they fail to meet one of the five restrictions and requirements enumerated in Jones,
Advice, supra, specifically, the restriction that they must not play any role in establishing the
criteria under which the program is to operate, particularly with reference to the structure or
administration of the program. You state that the Council Members did , in fact, establish the
criteria under which the Program is to operate, and played a role in appropriating additional
funds to the Program. You further state that the Council Members will presumably continue to
appropriate additional funds in the future. Based upon the foregoing facts, the Council
Members could not participate in the Program which provides residential property owners in
the Borough with a Borough subsidy for the construction and installation of new sidewalks and
curbs without transgressing Section 1103(a) of the Ethics Act.
It is parenthetically noted that the class /subclass exclusion to the definition of "conflict"
or "conflict of interest" would not apply in the instant case. This exclusion was recently
addressed by the Commission in Kablack, Opinion 02 -003. In Kablack, supra, the
Commission held that in order for this exclusion to apply, two criteria must be met: (1) the
affected public official /public employee, immediate family member, or business with which the
public official /public employee or immediate family member is associated must be a member of
a class consisting of the general public or a true subclass consisting of more than one
member; and (2) the public official /public employee, immediate family member, or business
with which the public official /public employee or immediate family member is associated must
be affected "to the same degree" On no way differently) than the other members of the
class /subclass. Id. In the instant case, it is evident from the spreadsheet which you have
submitted that the subclass, currently consisting of seventy -four (74) Program Participants,
would not be affected to the same degree given that the amount of the Participants'
reimbursements would range anywhere from a few hundred dollars to several thousand dollars
depending upon the total square footage of the sidewalk.
This Advice is limited to addressing the applicability of Sections 1103(a) and 1103(f) 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
Jones 02- 595 -CL
October 25, 2002
Page 3
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 Borough Code.
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 not 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 where, under the submitted facts, the Council Members
established the criteria under which the Program is to operate and played a role in
appropriating additional funds to the Program, and where the Council Members will continue to
appropriate additional funds in the future. The class /subclass exclusion to the definition of
"conflict" or "conflict of interest" would not apply in the instant case because the amount of the
Participants' reimbursements would range anywhere from a few hundred dollars to several
thousand dollars depending upon the total square footage of the sidewalk. 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