HomeMy WebLinkAbout80-580 DeSantisTO:
RE:
FACTS:
DISCUSSION:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
March 12, 1980
ADVICE OF CHIEF COUNSEL
Nancy C. De Santis
Richard E. De Santis
1609 Bond Street
Brockway, PA 15824
Borough Solicitor and Borough Councilmen Participating
in Matter in Which They Have an Economic Interest
Advice # 80 -580
On February 11, 1980, Nancy C. De Santis and Richard
E. De Santis, members of the borough zoning board and
borough planning commission respectively wrote this Commission
asking for an opinion.
They advised that their solicitor, R. Edward Ferraro,
Esquire, and his father Ross L. Ferraro, had an interest in
certain realty which was the subject of action by the planning
commission, borough council, and zoning board.
The issue is whether a borough solicitor and his father,
a borough councilmen, can participate in a matter before the
borough planning commission, borough council, or zoning board
where they have an interest in the matter.
Conflict of interest exists when a person represents
two or more interests which are adverse to one another.
A borough solicitor has a duty to his municipal client
to enforce the ordinances of the municipality and protect
the tax payers' interest. If the solicitor is representing
a client or has a personal business interest, his duty
toward that client or toward himself is to maximize the
interest. These two obligations are mutually incompatible.
Therefore, neither the borough solicitor nor his father
as borough councilman can in any way take part in their
capacities as solicitor or councilman.
Nancy C. De Santis
March 12, 1980
Page 2
This does not of course bar them from reprsenting
their own economic interests before the board of which they
are a part. However, any action as borough solicitor or
borough councilman to further their own economic interests
is a violation of Section 3(a) of the State Ethics Act.
This Section reads:
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.
Any person who violates Section 3(a) is guilty of
a felony and shall be fined not more than $10,000 or
imprisoned not more than 5 years, or be both fined and
imprisoned.
In addition, a solicitor has obligations higher
than those of an ordinary public official and is subject
to disbarment by the Pennsylvania Supreme Court. It is
noted that this matter has been referred to Mr. Craig Simpson,
District IV Office, The Disciplinary Board of the Supreme
Court, 3606 Mellon Bank Building, 525 William Penn Place,
Pittsburgh, PA 15219. This Commission takes no position
with respect to construing the Code of Professional
Responsiblity and applying it to any of the facts alleged.
Attention is also called to Section 9(c) of the Act
which requires any person who obtains financial gain from
violating any provisions of the State Ethics Act be required,
and addition to any other penalty provided by law, to pay
into the State Treasury three times the amount of the
financial gain resulting from such violation.
A zoning board, unlike a planning commission, is not
subordinate to the borough council but is an independent
body. Therefore, there is no conflict of interest in a
borough council member or a borough solicitor presenting
a matter with which they have an economic interest before the
zoning board.
Nancy C. De Santis
March 12, 1980
Page 3
CONCLUSION:
DRM /rdp -2
A borough solicitor and a borough councilman must
abstain from any discussion in vote on any matter in which
they have an economic interest. This advice makes no findings
of fact, but simply states the interpretation of the State
Ethics Act as applied to the facts given.
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.
A personal appearance before the Commission and a
formal opinion will be issued upon your request if you
feel this reply does not suffice.
This letter is a public record and will be made
available as such.
cc: Craig Simpson
;AVID RITTENHOUSE MORRISON
thief Counsel