Loading...
HomeMy WebLinkAbout89-530 MansourMark Mansour, Esquire 424 Brandon Street Southwest, PA 15601 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 21, 1989 89 -530 Re: Conflict of Interest, School District, Borough Council, Voting on Construction of a New School by Councilmembers who are associated with the School District Dear Mr. Mansour: This responds to your letter of March 17, 1989, in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act presents any restrictions or prohibition upon various members of borough council who individually or through their spouses are associated with the school district which seeks approval from the borough to raze the existing school and construct a new elementary school . Facts: You state that you are the Solicitor for the Borough of Southwest, Greensburg Borough, Westmoreland County, and you have telephonically advised that you are authorized to ask for an advisory opinion on behalf of four councilmembers who are named in your letter. You state that there is property in Southwest, Greensburg Borough which is owned by the Greensburg -Salem School District. After noting that the property is currently zoned Residential -2 and contains an elementary school known as the Welty Street School as well as a playground and ball field, you indicate that the school district is seeking approval to raze the existing school and construct a new elementary school. You then advise that there is a zoning ordinance in the borough which allows an educational institution in an R -2 zone as a conditional use provided the said district obtains approval by the council. You then request an advisory opinion as to whether the following four individuals would have a conflict on voting on the matter before the borough: Councilwoman Julia Smith, who is employed by the school district as a secretary in the administrative office; Council President James Smith, who is husband of councilwoman Julia Smith; Councilman Dale Hassinger, who is employed as a tenured teacher in the Greensburg -Salem School District; and Mark Mansour, Esquire April 21, 1989 Page 2 lastly, Councilman William Lackey, who is the husband of Nancy Lackey, a retired teacher in the Greensburg -Salem School District. Discussion: The four councilpersons in Southwest, Greensburg Borough, are public officials within the definition of that term as set forth in the Ethics Act and the regulations of this Commission. 65 P.S. 5402; 51 Pa. Code S1.1. As such, they are subject to the provisions of the Ethics Act and the restrictions therein are applicable to them. Section 3(a) of the Ethics Act provides: 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). Under Section 3(a) quoted above, the State Ethics Commission has determined that use of office by a public official /employee to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official /employee to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon, Orders No. 128, 129, affirmed McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet, Order No. 412 -R, affirmed Yacobet v. State Ethics Commission, 109 Pa. Commw. Ct. 432, 531 A.2d 536 (1987). Similarly, Section 3(a` of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow, Ord 458 -R, affirmed Koslow v. State Ethics Commission, Pa. Commw. Ct. , 540 A.2d 1374 (1988). Likewise, a public official7employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -013. Section 2. Definitions. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, Mark Mansour, Esquire April 21, 1989 Page 3 officer, owner, employee or holder of stock. 65 P.S. S402. Section 2. Definitions. "Immediate family." A spouse residing in the person's household and minor dependent children. 65 P.S. §402. Section 2. Definitions. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. 65 P.S. S402. In the instant matter, it is clear from the above definitions that the Greensburg -Salem School District is not a business as that term is defined under the Ethics Act and derivatively the four councilpersons in question are not associated with the business as the term "business with which he is associated" is defined under the Ethics Act. The question now becomes whether the four councilpersons in question through their voting in this issue would be using public office to obtain a financial gain for themselves or a member of their immediate family which would not be compensation provided for by law. Since in this case the issue relates to razing an existing school and constructing a new elementary school on the same property, it does not appear that the four councilpersons, through their voting, would obtain a financial gain. See Tressler, Advice 88 -601 wherein it was determined under those facts and circumstances that a member of a school board would not be precluded from voting on the closing of a school and leasing it to an airline wherein her spouse was an employee of that airline. Therefore, under Section (a) of the Ethics Act the four councilpersons would not be precluded from voting on the issue of the approval for the construction of a new elementary school because it does not appear, and it is expressly assumed for purposes of this advice, that no financial gain would enure to the councilmember or the member of his or her immediate family. Lastly, 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. Mark Mansour, Esquire April 21, 1989 Page 4 Conclusion: The four councilmembers of the Southwest, Greensburg Borough are public officials subject to the provisions of the Ethics Act. Based upon the facts and circumstances outlined above and assuming that their vote or participation would not result in any type of financial gain for themselves or a member of their immediate family, you are advised that under Section 3(a) of the Ethics Act the four councilmembers would not be precluded from voting on the issue of an approval as to the proposed construction of a new elementary school in Southwest, Greensburg Borough. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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 appeal and must be received at the Commission within u in writing daysofthe of this Advice pursuant to 51 Pa. Code S2.12. Sincerely, Vincent J. Dopko, General Counsel