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HomeMy WebLinkAbout86-520 IsraelStephen Israel, Esquire 1109 Grant Rui l di ng Pittsburgh, PA 15219 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 March 3, 1986 ADVICE OF COUNSEL 86 -520 Re: Simultaneous Service, Elected Constahle, Member Zoning Hearing Roard Dear Mr. Israel: This responds to your letter of January 30, 1986, wherein you requested the advice of the State Ethics Commission. Issue: Whether an elected constable may simultaneously serve as a member of a zoning hearing hoard within the purview of the State Ethics Act. Facts: You advised that you are the solicitor for Lincoln Borough and have, in that capacity requested the advice of the State Ethics Commission. You indicate that a member of the Lincoln Borough Zoning Hearing Board was recently elected to the position of constahle in Lincoln Rorough. He is also a member of the Lincoln Rorough Planning Commission. You have requested the advice of the State Ethics Commission as to whether there are any prohihitions within the purview of the State Ethics Act regarding such simultaneous service. You indicate that you have requested the advice of the Supreme Court of Pennsylvania in relation to any prohihitions that may he placed upon a constahle simultaneously serving in another puhlic office. You indicate that such service by a constable is not prohihited under any rules or regulations that have heen promulgated by the Pennsylvania Supreme Court. You have now requested the advice of the State Ethics Commission as to whether there would he any prohihition on a public official serving in another public office as indicated above. Discussion: For the purpose of this advice we will assume that the memher of the zoning hearing hoard is a puhlic official as that term is defined in in Dice, 85 -025, wherein we held that the issue of whether an official is appointed and non - compensated official is no longer criteria for determining Stephen Israel , Esqui re March 3, 1986 Page 2 whether such an individual is within the purview of the Act.. The Commission issued this ruling in relation to non - compensated appointed memhers of municipal authorities. The Commission, however, will shortly be issuing regulations regarding appointed non- compensated members of other commissions and hoards in order to determine if they are within the purview of the Act. Thus, we will proceed as though this individual is within the definition of puhlic official as set forth in the State Ethics Act. 65 P.S. &402. Generally, the State Ethics Act provides as follows: Section 3. Restricted activities. (a) No public official or puhlic employee shall use his public office or any confidential information received through his holding puhlic office to ohtain 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 Ethics Act places no per se prohibition upon an individual serving simultaneously in two positions of puhlic employment. Within the above provision of law, however, no puhlic official may use their puhlic office in order to ohtain a financial gain for themselves, a member of their immediate family, or a business with which they are associated. In addition to the foregoing, the State Ethics Act also provides that the Commission may address other areas of conflict of interest. 65 P.S. &403(d). The parameters of the type of activity encompassed by this provision of law, generally are determined through a review of the scope and intent of the State Ethics Act. The intent of the Act was to insure the public that the financial interests of their puhlic officials do not conflict with the public trust. As a result, this Commission has previously determined that this provision of law would prohibit a public official from acccepting or securing in his puhlic position, compensation to which he knew he was not entitled. See fomalakes, 85 -010. Thus, from an analysis of the above cases that have been previously ruled upon by the Commission, it must he determined whether the individual who is simultaneously serving as a member of the zoning hearing board and as an elected constable in the same municipality has used his position in order to ohtain any financial gain or has otherwise accepted compensation to which such individual was not entitled. Generally, in the instant situation, it does not appear as though the individual involved has appointed himself to the zoning hearing board, or has otherwise fixed any compensation that he is to receive while on that hoard. As a result, it does not appear as though this individual would have used his position to obtain any financial gain other than the compensation provided by law. Stephen Israel, Esquire March 3, 1986 Page 3 The Pennsylvania Municipalities Planning Law, however, provides that memhers of the zoning hearing hoard shall hold no other office in the municipality except that no more than one member of the hoard may also he a member of the planning commission. From the ahove provision of law, it is apparent that one who serves as a zoning hearing hoard member may not hold any other office in the municipality other than as a member of the planning commission. His membership on the planning commission, however, is also qualified by the criteria that no other member of the zoning hearing board may be a member of the planning commission. While this Commission cannot enforce or otherwise offer advice as to the scope and intent of this particular restriction, the Commission is empowered and has, in the past, ruled upon such issues when they impact upon the State Ethics Act. In a similar situation, this Commission has previously held that where an individual serves in simultaneous positions and such a prohibition exists, the individual may not receive any compensation for serving in the position. This would he so in the instant situation especially in light of the fact that one who serves as a zoning hearing hoard member may not hold any other office in the municipality. If he is compensated as a zoning hearing board member, he would receive his compensation in violation of the above provision of law. 53 P.S. , $10903; see also Rlumling, No. 38R. The Commission determined in that matter that acceptance of compensation to which an individual was not entitled would be a violation of the State Ethics Act. Thus, if this zoning hearing hoard member is to receive compensation for service in that position, his simultaneous service as such a member and elected officer, would appear to result in his obtaining financial gain to which he is not entitled and, thus, in violation of the State Ethics Act. If the individual in question is to receive no financial gain for serving as a member of the zoning hearing board, then it is douhtful whether the Ethics Act would place any outright prohibition on his simultaneous service in the aforementioned positions. However, we must note that our interpretation is only under the State Ethics Act. We have noted the existence of the prohibition set forth in the Pennsylvania Municipalities Planning Law and further advised that this particular advice should not he read as an interpretation of that particular provision nor he considered to be clearance to act contrary to that particular provision of law. Further advice should he ohtained from the borough solicitor in regard to this matter. Conclusion: The State Ethics Commission places no per se prohibition upon the simultaneous service of a member of a borough zoning hearing board as an elected constable in the borough. If the member of the borough zoning hearing board does not participate in the decision to appoint himself to that position or otherwise participate in any matter regarding the award of compensation to Stephen Israel , Esqui re March 3, 1'25 Page 4 himself, then there is no prohibition under section 403(a) of he State Ethics Act. In light of certain provisions in the Pennsylvania Municipalities Planning Law, this individual may he precluded from receiving compensation in his position on the zoning hearing hoard. However, if the position is not one for which compensation is awarded, then there would appear to be no prohibition upon this simultaneous service within the purview of the State Ethics Act, This advice is not to he read as clearance to act or as an interpretation under any other provision of law. Pursuant to Section 7(q)(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 he 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 he scheduled and a formal Opinion from the Commission will he issued. Any such appeal must he made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. Sincer . 474 .. 776 G hn J. Co 'no General ounsel