Loading...
HomeMy WebLinkAbout03-601 PellegrineDear Ms. Pellegrine: ADVICE OF COUNSEL November 19, 2003 Maryann Pellegrine CD Programs Operations Coordinator City of Altoona Department of Planning & Community Development 1301 Twelfth Street, Suite 400 Altoona, PA 16601 -3491 03 -601 Re: Conflict; Public Employee; Community Development Programs Operations Coordinator; City; Planning and Community Development Department; Community Development Block Grant (CDBG); Direct Loan Program; Immediate Family. This responds to your letters of October 8, 2003, and October 20, 2003, by which you requested advice from the State Ethics Commission. Issue: Whether, pursuant to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S..1101 et seq., an employee in a city's department of planning and community development would have a conflict of interest as to an immediate family member applying to participate in a loan program administered by the department of planning and community development. Facts: As an employee of the Department of Planning and Community Development of the City of Altoona ( "City "), you seek an advisory from the State Ethics Commission. You have submitted facts, which may be fairly summarized as follows. Your official job title is Community Development Programs Operations Coordinator. You have submitted a job description, which is incorporated herein by reference. You state that an "immediate relative" has submitted an application to the City for a low interest rehabilitation loan under the City's Community Development Block Grant ( "CDBG ") Direct Loan Program ( "Program "). The Program is a CDBG- funded program conducted with the City to provide low interest loans at a 0% or 3% interest rate for the rehabilitation of owner - occupied dwelling units. The Program is available to low and Pellegrino 03 -601 November 19, 2003 Page 2 moderate income homeowners residing in the City. The Program requires that all deficiencies subject to the City's housing rehabilitation requirements be corrected. The Department of Planning and Community Development operates the Program for the City and is in charge of receiving, screening, approving, and monitoring loan applications. Proposed work involves structural improvements to a residence located on South Second Street, between First and Crawford Avenues. You state that information provided in the application has been verified. You further state that such information indicates that all of the qualifications required by the Direct Loan Program have been met. You state that although you are in no way involved in the decision making process for the program, you are concerned that the appearance of a conflict may arise. Discussion: It is initially noted that pursuant to Sections 1107(10) and (11) of the Ethics Act, 65 Pa.C.S. § §1107(10), (11), advisories are issued tote 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 a Community Development Programs Operations Coordinator in the Department of Planning and Community Development for the City of Altoona ( "City "), you are a "public employee" as that term is defined in the Ethics Act and hence you 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. (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 Pellegrino 03 -601 November 19, 2003 Page 3 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), 0). 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. "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. "Immediate family." A parent, spouse, child, brother or sister. 65 Pa.C.S. §1102. Section 1103(f) of the Ethics Act, which pertains to contracting, provides as follows: §1103. Restricted activities. (f) Contract. - -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 Pellegrino 03 -601 November 19, 2003 Page 4 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 public 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 commenced within 90 days of the making of the contract or subcontract. 65 Pa.C.S. §1103(f). The following terms that pertain to Section 1103(f) are defined in the Ethics Act as follows: §1102. Definitions. "Governmental body." Any department, authority, commission, committee, council, board, bureau, division, service, office, officer, administration, legislative body, or other establishment in the Executive, Legislative or Judicial Branch of a state, a nation or a political subdivision thereof or any agency performing a governmental function. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. 65 Pa.C.S. §1102. The stated purpose of the Ethics Act is to strengthen the faith and confidence of the eople 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. For purposes of this advisory, your reference to an "immediate relative" shall be interpreted to mean a member of your "immediate family" as that term is defined in the Ethics Act. 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; Pellegrino 03 -601 November 19, 2003 Page 5 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(j) 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 publicficial /public employee might be competing for available funds. As for Section 1103(f), it is noted that this sort of program may require participants to enter into contracts and /or subcontracts. If your immediate family member, as a participant in the Community Development Block Grant ( "CDBG ") Direct Loan Program ( "Program "), would enter into a contract with the City, the governmental body with which you are associated, or would enter into a subcontract with any "person" (as defined above) who has a contract with the said governmental body, Section 1103(f) of the Ethics Act would impose the following requirements if the contract or sub - contract would be valued at $500.00 or more: 1. prior public notice of the contract possibility; 2. public disclosure of applications and 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. As long as you observe the restrictions of Sections 1103(a) and 1103(f), you would not have a conflict of interest with respect to your immediate family member applying for and participating in the benefits associated with the Program. 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 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. Conclusion: As a Community Development Programs Operations Coordinator in the Department of Planning and Community Development for the City of Altoona City "), you are a "public employee" subject to the provisions of the Public Official and Employee Ethics Act, ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. You would not have a conflict of interest under Section 1103(a) of the Ethics Act with respect to your immediate family member applying for and participating in the Community Development Pellegrino 03 -601 November 19, 2003 Page 6 Block Grant ( "CDBG ") Direct Loan Program ( "Program ") administered by Department of Planning and Community Development of the City 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, played no role in selecting or reviewing applicants, used no confidential information, and finally had no involvement with the administration of the program. The requirements of Section 1103(f) of the Ethics Act noted above, to the extent applicable, must be observed. 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