Loading...
HomeMy WebLinkAbout80-736 MihalikJohn A. Mihalik, Esquire Hummel, James & Mihalik 29 East Main Street Bloomsburg, PA 17815 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 December 17, 1980 ADVICE OF COUNSEL RE: Planning Commission, Zoning Officer Dear Mr. Mihalik: 80 -736 This responds to your letter of September 9, 1980 in which you requested an Opinion from the Ethics Commission. Issue: You request Advice as to whether a member of a Plan- ning Commission can also serve as the Zoning Officer of a municipality. Facts: You informed us that a member of a Planning Commis- sion was considering serving as the local Zoning Officer. Discussion: In pertinent part, Section 2 of the Ethics Act defines a public employee as: "Any indidual employed by the Commonwealth or a political sub- division who is responsible for taking or recommending official action of a non - ministerial nature with regard to: (1) contracting or procurement; (2) administering or monitoring grants or subsidies; (3) planning or zoning (4) inspecting, licensing, regulating or auditing any person; or (5) any other activity where the official action has an econo- impact of greater than a de minimus nature on the interests of any person." 65 P.S. §402. John A. Mihalik, Esquire December 17, 1980 Page 2 In Simmons, 79 -056 the Commission interpreted this definition to mean that a zoning officer is a public employee because he is employed by a political subdivision of the Commonwealth who is responsible for taking or recommending non - ministerial official action with regard to zoning. According to 53 P.S. §10202 members of planning commis- sions are appointed and serve without compensation. Munici- pal employees may serve as members of a planning commission without losing their powers or compensation. The Ethics Act, 65 P.S. §401 et. seq., provides that a "public official" shall not include any appointed official who receives no compensation other than reimbursement for actual expenses. Previous decisions of the Commission clearly state that " uncompensated appointed officials such as members of a plan - ning commission... are not covered by the Act." Coughlin, 76 -063. Members of planning commissions recommend various plans including zoning ordinances to the creating municipality. 53 P.S. §10209.1. The duty of a zoning officer is to administer the zoning ordinance adopted by the municipality. 53 P.S. §614. Thus while a zoning officer sitting on a planning commission may have some influence on recommended measures it is his duty to enforce, while it is the municipality that actually approves the measures. TL.e Commission has held that the Ethics Act does not prohibit simultaneous representation of more than one poli- tical subdivion. King, 79 -034. Analogously, the Act does not prohibit an individual from serving a municipality in more than one capacity. Given the duties of the zoning officer and the Planning Commission, which as described above are separate and distinct, we see no reason to preclude holding such positions simultaneously. Conclusion: Thus, while the zoning officer is a public employee, there is no per se prohibition from him also serving as a member of a Planning Commission. Pursuant to Section 7(9)(ii), this Advice is a complete defense in any enforcement proceeding initiated by the Commis- sion, 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 avail- able as such. John A. Mihalik, Esquire December 17, 1980 Page 3 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 may be scheduled and a formal Opinion from the Commission will be issued. You should make such a request or indicate your disapproval of this Advice within the next 30 days. SW /rdp Sincerely, p i andra S. Ch''stianson General Cou sel