HomeMy WebLinkAbout06-515 LaganaFrancis Lagana
31 Green Street
Carbondale, PA 18407
ADVICE OF COUNSEL
February 14, 2006
06 -515
Re: Conflict; Public Official /Public Employee; City Councilman; Community
Development Block Grant Facade Program; Participation by City Council Member.
Dear Mr. Lagana:
This responds to your letter of January 10, 2006, 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., a city council member may participate in a community
development block grant facade program administered by the city's office of community
development.
Facts: You are a council member for the City of Carbondale ( "City "), having
been re- elected in November 2005 to a four -year term. In your private capacity, you are
the owner of an inspection station garage.
The City, through it's Office of Community Development, is offering a facade grant
program ( "Facade Grant Program ") to all business owners within the City limits who
improve their structures through rehabilitation or new construction. You intend to make
improvements to your inspection station garage, and you ask whether the Ethics Act would
prohibit you from submitting an application to participate in the City's Facade Grant
Program.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based
upon the facts that the requester has submitted. In issuing the advisory based upon the
facts that the requester has submitted, the Commission does not engage in an
independent investigation of the facts, nor does it speculate as to facts that have not been
submitted. It is the burden of the requester 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 requester has truthfully disclosed all of the material facts.
Lagana, 06 -515
February 14, 2006
Page 2
As a City Council Member, you are a "public official" subject to the provisions of the
Ethics 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 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), (j).
The following terms pertaining 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
Lagana, 06 -515
February 14, 2006
Page 3
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.
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 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
"Contract." An agreement or arrangement for the
acquisition, use or disposal by the Commonwealth or a
political subdivision of consulting or other services or of
supplies, materials, equipment, land or other personal or real
property. The term shall not mean an agreement or
arrangement between the State or political subdivision as one
party and a public official or public employee as the other
party, concerning his expense, reimbursement, salary, wage,
retirement or other benefit, tenure or other matters in
consideration of his current public employment with the
Commonwealth or a political subdivision.
"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
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February 14, 2006
Page 4
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.
In applying the above provisions of the Ethics Act to your inquiry, Section 1103(a),
which pertains to conflicts of interest, shall be considered first.
The stated purpose of the Ethics Act is to strengthen the faith and confidence of the
people 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. § 1101.1.
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.
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, the Ethics
Act was not enacted nor should it be interpreted to preclude public officials or public
employees from participating in programs that might otherwise be available to them as
citizens, as long as the restrictions of the Ethics Act are observed. 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 that 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;
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 public official /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 you, as a participant in the Facade Grant
Program, would enter into a contract with the City of Carbondale, the governmental body
with which you are associated, or would enter into a subcontract with any "person" (as
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February 14, 2006
Page 5
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), 1103(f) and 1103(j) of
the Ethics Act, you may apply for and participate in the benefits associated with the
Facade Grant Program.
This Advice is limited to addressing the applicability of Sections 1103(a), 1103(f)
and 1103(j) 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. Specifically not addressed herein is the applicability of
federal statutes, the Code of Federal Regulations, or the Third Class City Code.
Conclusion: As a Council Member for the City of Carbondale ( "City "), you are a
public official subject to the provisions of the Public Official and Employee Ethics Act,
( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Section 1103(a) of the Ethics Act would not
preclude you from applying with the City to participate in the City's Facade Grant Program
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(j) of
the Ethics Act noted above must be observed. 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 requester 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
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February 14, 2006
Page 6
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