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HomeMy WebLinkAbout86-636A CoarMr. Edward J. Coar R.D. #2, Box 730 Honesdale, PA 18431 Dear Mr. Coar: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783 -1610 January 6, 1987 SUPPLEMENTAL ADVICE OF COUNSEL 86 -636 -A Re: Simultaneous Service, Township Tax Collector, Member, Township Planning Commission This responds to your letter of December 19, 1986, seeking further clarification of Advice No. 86 -636. Issue: Whether the State Ethics Act presents any prohibition upon a township tax collector simultaneously serving as a member of the township's planning commission. Facts: On December 16, 1986, The State Ethics Commission issued Advice of Counsel No. 86 -636 to you regarding the above issue. You had advised the Commission by letter of November 17, 1986, that you were presently serving as the township tax collector for Cherry Ridge Township, Wayne County, Pennsylvania. You had recently been asked to take a position on the township planning commission. You have requested the advice of the State Ethics Commission regarding whether any prohibitions would be placed upon such simultaneous service within the purview of the State Ethics Act. Pursuant to the aforementioned Advice of Counsel, you are advised that while the Star Ethics Act presented no per se prohibition upon such simultaneous service you could not participate in any matter, in either position, that wou;d'result in your obtaining a financial gain in the other position or that would otherwise result in a conflict of interest. In your most recent letter, you advise that as a member of the township planning commission, you would be called upon to review, consider and decide whether new subdivisions or developments should be approved for construction in the township. You further advise that the approval of such subdivision /development plans will increase the value of the land involved thereby increasing the taxes on that land. You advise that as a result of this increased value, the commissions which you would receive as tax collector would also increase. In light of the foregoing, you have requested th,! further advice of the State Ethics Commission in relation to this situation. Mr. Edward J. Coar January 6, 1987 Page 2 Discussion: As noted in our previous advice, the State Ethics Act provides that: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). The State Ethics Act further permits this Commission to address other areas of possible conflicts of interests. 65 P.S. §403(d). Initially, we must note that wh:tt is in question in the instant situation is your position as a member caf Township planning commission. The State Ethics Act defines public official as follows: Section 1.1. Definitions. Publi: cfficials - -- (i) Any elected or appointed official in the executive, legislative, or judicial branch of the government of the Commonwealth or any of its political subdivisions. (ii) The term does not include the following: (A) Any member of an advisory board who has no authority to spend public funds other than reimbursement for personal expenses or to otherwise exercise the power of the State or any political subdivision thereof. (B) Any appointed official who receives no compensation other than reimbursement for actual expenses. (C) Any political party officer. (D) Judges and inspectors of elections and notary publics. (iii) Persons in the offices listed below are generally considered public officials: Mr. Edward J. Coar January 6, 1987 Page 3 (A) All incumbents of offices filled by nomination of the governor and confirmation of the Senate. (8) All compensated heads of executive, legislative, and independent agencies, boards, and commissions. (C) All persons who report directly to heads of executive, legislative, and independent agencies, boards, and commissions except clerical personnel. (D) All compensated members of agencies, boards, and commissions appointed by the General Assembly or its officers. (E) School Superintendents and assistant superintendents. (F) All persons appointed to positions designated as officers by code, charter, or the like of the Commonwealth or its political subdivisions. 51 Pa. Code 1.1. The above definition was subsequently modified by a Supreme Court decision wherein it was decided that the last sentence of the above definition was unconstitutional. Snider v. Thornburgh, 469 Pa. 159, 436 A.2d 593, (1981). As such, the definition of public official no longer contains the exemption set forth in the last sentence of the above definition. In light of this, the State Ethics Commission has recently promulgated, pursuant to the authority vested in this Commission by the State Ethics Act 65 P.S. §407(1), a new definition of the term public official. That definition now provides as follows: Section 1.1. Definitions. Public officials - - -- An elected or appointed official in the executive, legislative or judicial branch of the government of the Commonwealth or its political subdivisions. The terms does not include a member of an advisory board who has no authority to spend public funds other than reimbursement for personal expenses or to otherwise exercise the power of the State or a political subdivision thereof. Mr. Edward J. Coar January 6, 1987 Page 4 (i) The following criteria will be used to determine if the exception in this paragraph is applicable: (A) The body will be deemed to have the power to expend public funds if the body may commit funds or may otherwise make payment of monies, enter into contracts, invest funds held in reserves, make loans or grants, borrow money, issue bonds, employ staff, purchase, lease, acquire or sell real or personal property without the consent or approval of the governing body and the effect of the power to expend public funds has a greater than de minimus effect on the interest of a person. (B) The body will be deemed to have the authority to otherwise exercise the power of the State or of a political subdivision if one of the following exists: (I) The body makes binding decisions or orders adjudicating substantive issues which are appealable to a body or person other than the governing authority. (II) The body exercises a basic power of government and performs essential governmental functions. (III) The governing authority is bound by statute or ordinance to accept and enforce the rulings of the body. (IV) The body may compel the governing authority to act in accordance with the body's decisions or restrain the governing authority from acting contrary to the body's decisions. (V) The body makes independent decisions which are effective without approval of the governing authority. (VI) The body may adopt, amend and repeal resolutions, rules, regulations, or ordinances. (VII) The body has the power of eminent . domain, or condemnation. Mr. Edward J. Coar January 6, 1987 Page 5 (VIII) The enabling legislation of the body indicates that the body is established for exercising public powers of the Commonwealth or a political subdivision. (ii) The term does not include judges and inspectors of elections, notary publics and political party officers. (iii) The term generaly includes persons in the following offices: (A) Incumbents of offices filled by nomination of the Governor and confirmation of the Senate. (8) Heads of executive, legislative and independent agencies, boards and commissions. (C) Persons who report directly to heads of executive, legislative and independent agencies, boards and commissions except clerical personnel. (D) Members of agencies, hoards and commissions appointed by the General Assembly or its officers. (E) School superintendents and assistant superintendents. (F) Persons appointed to positions designated as offices by code, charter or the like of the Commonwealth or its political subdivisions. (G) Members of municipal, industrial development, housing, parking and similar authorities. (H) Members of zoning hearing boards and similar quasijudicial bodies. (I) Members of other public bodies meeting the criteria set forth in subparagraph (i)(A). 51 Pa. Code §1.1 as amended 1986, 16 Pa. Bulletin 4653 In light of the duties of township planning commissions, it is doubtful whether any member of that board would be considered a public official within the purview of the State Ethics Act. Therefore, the provisions of that Act would not be applicable to the conduct of a township planning commission member. Mr. Edward J. Coar January 6, 1987 Page 6 Assuming, however, that you were to be considered a public official, there is no doubt that your conduct, as a planning commission member, as you have outlined it in your most recent letter, would present questions within the purview of the State Ethics Act. Specifically, as set forth in Section 3(a) above, no public official could use their position to obtain a financial gain for themselves. As a member of the planning commission, if you were to vote on a subdivision project and the result of that vote or approval would be to increase the value of the land and, thereby, increase your compensation as tax collector, there is no doubt that you would have used your position to obtain a financial gain for yourself. The situation that seems to be presented in your most recent communication would appear to indicate that a conflict of interest could potentially develop in such situations. You do not indicate, in your letter, if each and every action, by a township planning commission, would have the result stated above. However, if your vote or approval of a matter would result in your receiving a benefit in your other position and assuming that you were a public official covered by the State EthicF, Act, then you could not participate in such matters without occasioning a conflict of interest or a violation of the State Ethics Act. Once again, this response is based upon the assumption that it would apply to an individual who was a public official. We also note that the Ethics Act still would not prohibit the per se simultaneous service of one individual in these positions. However, we do note that if the only actions that a planning commission were to take related to the type of situations set forth in your letter, then realistically, an individual who simultaneously served in these positions would effectively be curtailed from taking any action in the one position that may benefit his own financial interest in the other. Therefore, while simultaneous service would not be absolutely prohibited by the State Ethics Act, there is no doubt that such would be the realistic result of your continued abstention in matters that affect your own personal interest. Based upon the foregoing, it would more likely be the better practice for you to forego such simultaneous service by relinquishing one of the positions. In any event, we note once again, that this advice is issued based upon the assumption that it would apply to a public official as defined in the State Ethic.; Act and the regulations of the State Ethics Commission. Conclusion: While the State Ethics Act presents no per se prohibition upon your simultaneous service as set forth above, the realistic result of the abstention requirement would be to prohibit an individual who so serves from participating, to any degree, in the decisions of the township planning commission. This would be the requirement placed upon any individual who is a public official as defined in the State Ethics Act. Because of the statutory definition of public official as now clarified in the regulations of the Commission, it is doubtful whether this requirement would be applicable to the member of a planning commission. However, even though the requirements of the law may not apply to you, as a planning commission member, because such a conflict of interst could be occasioned, it may be the better practice to forego such simultaneous service. Mr. Edward J. Coar January 6, 1987 Page 7 Pursuant to Section 7(9)(ii), this 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, providing 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 request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appear must bi made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. Sincerely, nu. ono Oener. Counsel