HomeMy WebLinkAbout85-526 Alberstadt JrJ. W. Alberstadt, Jr. Esquire
Quinn, Gent, Buseck and Leemhuis
1400 G. Daniel Baldwin Building
Erie, PA 16501 -1863
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
March 18, 1985
ADVICE OF COUNSEL
85 -526
Re: Township Supervisor, Voting on Zoning Ordinance
School Director; Zoning Administrator, Simultaneous Service
Dear Mr. Alberstadt:
This responds to your letter of February 12, 1985, wherein you requested
the advice of the State Ethics Commission.
Issue: A. Whether a township superviosr may vote on an ordinance dealing
with gas wells if he has such a well on his own property.
B. Whether any conflict of interest is occasioned by a School
Director serving as a borough zoning administratoa=.
Facts: As solicitor, you have requested the advice of the State Ethics
Commission in relation to the questions set forth above. You have not
provided any specific information and as such, this advice will only set forth
general guidelines.
Discussion: At the outset, it should be noted that both the township
supervisor and the school director are public officials as that term is
defined in the State Ethics Act. 65 P.S. §402; See 80 -050; Sowers; 79 -016,
Coon. As such, the conduct of these individuals must conform to the
provisions of the State Ethics Act.
Mr. J. W. Alberstadt
March 18, 1985
Page 2
Generally, the Ethics Act provides as follows:
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).
With respect to the township supervisor, this provision would operate to
restrict the use of that official's position or any confidential information
obtained, therefrom, to obtain any financial gain for himself or a business
with which he is associated. In this respect, if the proposed ordinance were
to operate so as to provide some type of personal benefit to this supervisor,
the supervisor could not vote on such ordinance without violating the
provisions set forth above. Likewise, if this proposed ordinance were to
effect the property of the supervisor differently than that of others, or if
the ordinance were to be addressed particularly to the supervisor's situation,
then the Ethics Act restrictions would be imposed.
As you have not forwarded a copy of the proposed ordinance, it is
difficult to envision all of the potential situations that could possibly
result in a violation of the provisions of the Ethics Act. The Commission,
thus cautions, that if the supervisor's participation in this matter results
in a conflict of interest or the appearance thereof, the supervisor should,
abstain from voting and participating in this matter and make such abstention
and the reasons, therefore, publically known and recorded
If on the other hand no such conflict is occasioned, then the Ethics Act
would place no prohibition on the supervisor's participation in this matter.
See, 84 -639, Reid.
With relation to the question presented regarding the school director,
the Ethics Act, once again, imposes no absolute prohibition upon the
simultaneous service in two positions by a public official. The aforecited
provision, 403(a) would operate to prevent this official from using his
current office or any information obtained therein to obtain the new position.
We will assume for the purpose of this advice that this director is not in a
position to either appoint himself to the new position or to use any
confidential information obtained from his director position to obtain the new
position. These factors if present would, of course, alter this advice.
Mr. J. W. Alberstadt
March 18, 1985
Page 3
Finally, the Ethics Act also requires the Commission to address other
areas of conflict. 65 P.S. §403(d). In this respect while there is no
outright prohibition on this official holding both positions, the individual
must avoid all conflicts of interest. Thus, in order to avoid the appearance
of such a conflict, the zoning administrator must ahstain from any action that
would either benefit or hurt the school district served as a school director.
Likewise, as school director, he must ahstain from any activity that may
benefit him in his capacity as zoning administrator for the borough. This
result is in accord with previous Commission advice, See, 81 -651, Tr'bovich,
(school director may serve as zoning hearing board member); 83-548, Wilkinson,
(No conflict between building inspector and school director position).
Conclusion: The Ethics Act imposes no per se prohibition on the activity as
outlined. Said individuals are public officials, however, and therefore,
must comply with the provisions of the State Ethics Act as outlined above.
Pursuant to Section 7(9)(ii), this Advice s a complete defense in any
enforcement proceeding initiated by the Commission, and evidence or 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 preview tnis Advice. A
personal appearance before the Commission will be scheduled and a formal
Opinion from the Commission will be issued. Any suu:h appeal must be made, in
writing, to the Commission within 15 days of service of this Advice pursuant
to 51 Pa. Code 2.12.
JJC /sfd
Sincerely,
_
John ontino
G eral Counsel