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HomeMy WebLinkAbout81-533 ShirkKenelm L. Shirk, III., Esq. P.O. Box 1552 Lancaster, PA 17 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 March 31, 1981 ADVICE OF COUNSEL 81 -533 RE: Conflict of Interest, Township Supervisor Dear Mr. Shirk: This responds to your letter of February 18, 1981, in which you, as Solicitor for Clay Township, requested an opinion from the Ethics Commission. Issue: In your letter you request advice as to whether a Township Supervisor may act as a real estate broker in the same Township. Facts: You informed us that the Clay Township Supervisors wish to appoint a successor to serve the unexpired term of a resig- ning Supervisor. The proposed appointee, Gregory Dorward, is a real estate broker and has a financial interest in a real estate brokerage business. The business operates in Clay Township. If Mr. Dorward were appointed Supervisor he would abstain from voting on any matter in which he or his business associates has an interest. He would also place the reason for his abstention on the public record. Discussion: As a Township Supervisor, Mr. Dorward is a public official within the meaning of the Ethics Act, 65 P.S. §401 et seq. Section 402 of the Act provides that a public official is "Any elected or appointed official in the Executive, Legisla- tive or Judicial Branch of the State or any political subdivi- sion thereof...." Accordingly, Mr. Dorward must observe the restrictions the Act places upon public officials. The Act does not, however, absolutely forbid a real estate broker from serving as a Township Supervisor. As the Ethics Commission noted in Sowers, 80 -050 "...the Ethics Act was not designed to preclude public officials from engaging in business with members of the public in general." A real estate broker could not, for example, also serve as full -time professional Planning, Building, Zoning and Code Enforcement Officer. The potential for use and, therefore, misuse of confidential informa- tion in such a case creates an inherent conflict of interest Kenelm L. Shirk, III, Esq. March 31, 1981 Page 2 because "It is difficult... to find an example or situation in which you would act as salesman for a Borough property where that property was not at some time subject to your review, b jurisdiction or decision." Norris, 80 -053. As a real estate roker, Dorward does not have such a pervasive influence over every part of the planning, zoning, inspection and licensing process as was present in Norris to create an inherent conflict of interest between the two roles. Nevertheless, the Supervisor must observe the strictures the Ethics Act places upon his activities and the use of confi- dential information. The Ethics Act clearly proscribes use of an official position as Supervisor to obtain work as a real estate broker. Sowers, 80 -050. Just as clearly the Act prohi- bits a client of the Supervisor attempting to influence the Councilman's vote by holding out the promise of future employment. Id. Another area of conflict is created if. the Supervisor must vote on matters that affect his real estate clients. The Commission has held that if the Supervisor knows at the time of his vote that he has been or can legitimately expect to be asked to do work for a client or that he will offer his services to the particular prospective client, the Supervisor should refrain from voting on the matter and place the reason for his abstention on the public record. Sowers, 80 -050. Thus, a Supervisor should not vote on a zonin change that affects a real estate client. The reason for tie abstention should be placed on the public record. The Act also specifically forbids a public official from using his public office or confidential information obtained through holding public office to obtain financial gain for himself, his immediate family or a business with which he is associated. 65 P.S. §403(a). The Supervisor may not give or use confidential information obtained through his office as Supervisor to a real estate client so as to benefit himself, his immediate family or a business with which he (the Supervisor) is associated. The Solicitor of Clay Township is to be commended for advising Mr. Dorward to abstain from voting on matters in which Dorward or his associates have an interest and to place the reason for the abstention on the public record. Conclusion: A Township Supervisor is a public official subject to the Ethics Act. No inherent conflict of interest is presented by a Supervisor who is also a real estate broker. The Supervisor must not use his official position to obtain work as a real estate broker. Nor may a client of the Supervisor /broker attempt to influence the Supervisor's vote. Kenelm L. Shirk, III, Esq. March 31, 1981 Page 3 If the Supervisor knows at the time of an official vote or action on a matter affecting real estate that he has been or can legitimately expect to be asked to work for a client or that he will offer his services to that particular prospective client, he must abstain from the vote. He must also place the reason for his abstention on the public record. The Supervisor may not use public office or confidential information obtained through holding public office to obtain financial gain for himself, his immediate family or a business with which he is associated. The Supervisor must not give confidential information to a client of his real estate business. 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 tacts 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 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 Si cerely, Sandra S. ristianson General Counsel