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HomeMy WebLinkAbout84-533A MoodyCarter Van Dyke c/o Michael Lamar Moody, Esquire Pine Hill Center 140 E. Butler Avenue Chalfont, PA 18914 RE: Advice No. 84 -533, Supplement Dear Mr. Moody: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 April 26, 1984 This follows up on our telephone conversation of March 16, 1984, at which time you requested that we review additional information in light of the above - captioned Advice. You provided this additional information by your letter of March 26, 1984, which is incorporated in this response. This response should be considered a supplement to Advice No. 84 -533 originally issued in this case as of March 8, 1984. As an addendum to that Advice, we will consider the additional facts and arguments which you have presented in your letter of March 26, 1984 and respond to same. You may assume that the protections extended under Section 7(9)(ii) of the Ethics Act as ennunciated in the original advice are applicable to this supplemental letter. Your letter of March 26, 1984, makes two points. First, you state that the governmental body with which Mr. Van Dyke was associated, the County Planning Commission, hereinafter, the Planning Commission, is an advisory group only and /or that Mr. Van Dyke in serving this Planning Commission performed duties of a ministerial nature. Based upon this analysis you ask us to conclude that Mr. Van Dyke should not be classified within the category of "public employee" as that term is defined in the State Ethics Act. You have not convinced us that the conclusion reached in the original Advice that Mr. Van Dyke is a "public employee" is incorrect but should you wish to pursue this question you should present a further appeal on this point to the State Ethics Commission itself. See 51 Pa. Code 2.12. The second point that you raise, however, is more important and of more fundamental interest to Mr. Van Dyke. Specifically, you indicate that there are the no zoning, subdivision, or land development ordinances which the County Planning Commission administers. Each municipality within Bucks County has its own zoning and subdivision ordinance and accordingly, the Planning Commission simply reviews and, if desired, reports to the governing body of the local municipality on any subdivision plans or zoning questions which are presented. While it is generally the case that under Section 502 of the Michael Lamar Moody April 26, 1984 Page 2 Municipalities Planning Code, counties which have such ordinances may exercise certein rights of approval or denial of plans presented by local municipalities, because Bucks County does not have a subdivision or lance development ordinance, the Planning Commission in Bucks County does not have such authority. Thus, when a local municipality presents subdivision plans or zoning questions to the Planning Commission for review, the Planning Commission has no authority to ever; "recommend" approval or disapproval of these plans and functions merely to "review and report on these plans." The Planning Commission's review is advisory only and their statements have no binding effect on the local officials to whom such plans have been submitted. However, in this submission and review process, Mr. Van Dyke may be asked to submit plans on behalf of a client to a local municipality arid, as required by law, in the name of the developer, to place his professional seal as a landscape architect upon these plans. These plans, then, in turn, would be submitted by the local body to the Planning Commission for their "review and report." In this process there would be no direct contact by Mr. Van Dyke in person or by correspondence in support of his client's or the developer's plans. All applications associated with such plans would be executed by the client or another agent of the client. Thus, the only time Mr. Van Dyke's name would appear on any document that would be subject to review by the Planning Commission would be that his name would appear along with his professional seal as a landscape architect on the plans which had originally been submitted to a local municipality. With respect to this second question, you ask whether the placing of Mr. Van Dyke's professional seal on plans which are prepared by him and submitted to a local body and forwarded for review and report to the Planning Commission constitutes a violation of the Ethics Act. It should be noted that this particular factual presentation and question was not originally presented to us nor was it reviewed in the Advice originally issued. The Ethics Commission has concluded that where a former public employee's submission would not constitute an attempt to influence or would have the affect of attempting to influence the actions or official judgment of the body with which he had been associated while serving as a public official or public employee, that the provisions of Section 3(e) would not present a barrier to such activity See Anderson, 83 -014. This conclusion is particularly applicable where the item which might be submitted by a former public employee or public official to the governmental body with which he has been associated is an item presented where the operative decisions have been made or will be made regarding the approval of a contract or a proposal by a body other than the body with which the former public employee has been associated. Also, the provisions of Section 3(e) are not violated where the submissions or information, even when they bear the name of the former public employee or public official, are designed to complete or provide information with respect Michael Lamar Moody April 26, 1984 Page 3 to an application or proposal which has been or will be approved or disapproved without regard to the application of a seal. In Mr. Van Dyke's situation the appearance of his name associated with his seal as a landscape architect would not have the effect of attempting to influence the decision of the Planning Commission per se. The application of his professional seal and his name more closely resembles the application of a notary seal as set forth in Goldstein, 81 -622. In this regard the fact that Mr. Van Dyke would apply his professional seal and sign his name to an application or plan which would be submitted to a local municipality which would then be submitted to the Planning Commission for advisory review only, would not be within the category of prohibited or restricted activity as "representation" under Section 3(c) of the State Ethics Act. Accordingly, under these circumstances as outlined above, it would not be a violation of Section 3(c) of the State Ethics Act if Mr. Van Dyke were to prepare plans, apply his professional seal and sign his name where those plans are designed to illicit the official approval of a local municipality on behalf of a client of Mr. Van Dyke's even where those plans will be submitted for advisory review, as required by law, to the Planning Commission. Should you have any further questions regarding this supplement to Advice No. 84 -533, please feel free to contact me again. SSC /rdp Sincerely, Sandra S. Christ'anson General Counsel