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HomeMy WebLinkAbout85-606 WolfMr. James R. Wolf 85 -606 Wolf Farms Inc. R.D. #2 Stewartstown, PA 17363 RE: Member of Township Planning Commission, Real Estate Developer, Conflict of Interest Dear Mr. Wolf: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 December 18, 1985 ADVICE OF COUNSEL This responds to your letter of Novemher 22, 1985, wherein you requested the advice of the State Ethics Commission. Issue: Whether a member of a township planning commission may, within the purview of the State Ethics Act, submit to the planning commission a proposal for the development of a tract of land. Facts: You are currently a member of the Hopewell Township Planning Commission. You have been on the commission for six years and you have heen chairman of the commission for three years. In January or February of 1986 you, along with your brother, intend to introduce a plan to the commission for the development of a residential project in the township. You now seek the advice of the State Ethics Commission as to whether there is any conflict of interest if you were to undertake this residential development project. Discussion: For the purpose of this advice we will assume that you are a public official within the purview of the State Ethics Act. See Dice, 85 -021; Snider v. Thornburgh, 469 Pa. 159, 436 A.2d 593, (1981). Your conduct, therefore, would be subject to the requirements of the Act. Generally, the State 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 husiness with which he is associated. 65 P.S. 403(a). Mr. James R. Wolf December 18, 1985 Page 2 Within this provision of law it is clear that a public official may not use their public position in order to obtain any financial gain for themselves or for a business with which they are associated. They may not use confidential information for similar purposes. As a member of the planning commission, therefore, you could not take any action or use any information that is confidential in order to benefit yourself or the project. See Rudnitsky, 81 -525; Eckstine, 83 -571. In addition to the foregoing provision of law, the Ethics Commission may address areas of possible conflicts of interest on the part of public officials and public employees. 65 P.S. , 5403(d). The Commission has previously ruled that this section would operate to prevent such an official or employee from representing interests that are adverse to the interests represented his official capacity. See Allen, 79 -024; Fritzinger, 80 -008. It is clear that under the foregoing factual s Tuation, you would be serving adverse interests if you, as a member of the planning commission, were to participate in the review, consideration and final disposition of a development project that was submitted by you or an entity with which you are associated. There's no doubt that in this situation you could not both serve the public interests as a member of the planning commission and your own private financial interests. As such, you would be required, as a member of the planning commission, to abstain from any participation, review, consideration, recommendation, or vote in relation to a residential development project in which you are involved. Additionally, you may not attempt to influence either directly or indirectly the other members of the township planning commission or other officials of the township, such as the township supervisors who have the final approval authority regarding the plan. Additionally, it should be noted that in your private capacity as a member of the real estate development project, you may be called upon to deal with members or employees of the township planning commission. This, of course, would present a sensitive situation in that you, as a private developer, would have to represent your development project before the employees of the planning commission as well as before the members of the planning commission and the members of the township who appointed you to that commission. As such, in order to avoid certain public perceptions regarding potential conflicts of interests, you are advised that it would be the better practice in this situation to not personally represent your development project before the members and employees of the planning commission or any employee or officer of the township. In this way you will remain completely detached from the commission's consideration of your project and would not he either directly or indirectly attempting to influence that commission's decisions. It is also noted that your abstention from participation in this matter should be noted publicly. The reason for this abstention should also be noted. Mr. James R. Wolf December 18, 1985 Page 3 Finally, this Commission has previously noted that in certain situations where only limited development possibilities exist or where limited development is permitted, the public official may not participate in the consideration or decision of other developers who may be seeking to obtain the same opportunity as the project with which the public official is associated. The public official who participates and, for example, votes against another developer's proposal could he perceived to have denied said proposals as to open the way for the acceptance of his own proposal. See Eckstine, 83 -571; Co Toff, 83 -005; and Resinger, 146C. Thus, if such a situation exists, you s ou abstain from the consideration of proposals submitted by other devel opers. Conclusion: While the state Ethics Act presents no per se prohibition on your submitting a development project for consideration to the township planning commission for review, you as a public official may not participate, to any extent, in the consideration or disposition of that project. Additionally, you are advised that you should not represent your project before any township official or employee. You should be particularly aware of the development of any conflicts of interests and public perceptions regarding your activities as a public official. In the event that other potential conflicts develop, you should seek further advice of this Commission. 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 he issued. Any such 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/ rdp Sincely, John J ontino GerO.eral Counsel