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Home My WebLink About81-539 PottsLynn L. Potts Franklin Township P.O. Box 25 Dillsburg, PA 17019 RE: Conflict of Interest, Real Estate Broker Dear Ms. Potts: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 April 6, 1981 ADVICE OF COUNSEL 81 -539 This responds to your letter of March 25, 1981 in which you requested an opinion from the State Ethics Commission. Issue: In your letter you requested advice as to whether you may serve as the appointed Secretary- Treasurer of Franklin Township and operate as a real estate broker and /or operate a business known as Potts Real Estate and Insurance. Facts: You informed us that you are the appointed Secretary - Treasurer of Franklin Township, York County. In that position you are paid approximately $5,500 per year for the duties associated with this office. Your duties consist of: taking minutes at meetings, correspondence for the Township, taking care of all banking needs of the Township (investing excess funds, paying bills, depositing funds, etc.), issuing driveway permits, taking applications on -lot sewage septic tank) systems, etc. You indicated that you also serve as the Secretary for the Township Planning Commission and that you were appointed to this position by the Township Supervisors. In either of these positions all decisions are made by the Township Supervisors or the Planning Commission, respec- tively. However, in some instances the Township Supervisors expressly empower you to make a decision as to the invest- ment of excess funds, depositing funds, etc. Lynn L. Potts April 6, 1981 Page 2 In addition to these official duties you also operate a business under the name of Potts Real Estate and Insurance. In this business you list and sell real estate, do some rental business and appraisal work. In relation to insurance, you sell fire insurance. However, you have not done and do not do any business with the Township in relation to real estate or insurance sales. Discussion: In your position as appointed Secretary- Treasurer for Franklin Township you fall within the definition of "public employee" as contained in the Ethics Act. See Section 2 of the Ethics Act, 65 P.S. 402. The Ethics Act, however, does not totally forbid a real estate broker or insurance salesman from serving as the appointed Secretary - Treasurer of the Township or as Secretary for the Township Planning Commission. 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 salesman could not, for example, serve as the full -time professional planning, building, zoning, and code enforcement officer for a municipality. In such a situation the potential for use and therefore misuse of confidential information creates an inherent conflict of interest because it has been held by the Commission that "it is difficult... to find an example or situation in which such a person would act as salesman for property where that property was not at the same time subject to his review, jurisdiction or decision." Norris, 80 -053. However, in your situation, you do not have such a pervasive influence of every part of the planning, zoning, inspection and licensing process as was present in the Norris case. In fact, you do not have any vote or decision making ability either as Secretary- Treasurer or Township Planning Commis- sion Secretary in relation to any areas that you would have an interest in as a real estate broker. Nevertheless, you should remember that the Ethics Act does require that no public official or public employee may use confidential information gained through the holding of public office for his own benefit or personal gain. The Ethics Act clearly proscribes the use of an official posi- tion to obtain work as a real estate salesman, as well., The Act also prohibits a client or potential client of yours as a real estate salesman form attempting to influence your official action as Secretary- Treasurer or Secretary of the Planning Commission. This does not appear to be a distinct possibility in your case, where you have no official vote. However, no client or potential client of yours should attempt to influence you in your position as Secretary - Treasurer or Secretary of the Planning Commission, in general. Lynn L. Potts April 6, 1981 Page 3 Finally, if there would be a situation in which you could influence the issuance of a driveway permit, for example, of a real estate client of yours, in order to avoid the appearance of a conflict of interest you might best request that this particular action be taken by another official. Conclusion: As Secretary- Treasurer of Franklin Township and as Secretary for the Township Planning Commission there is no total prohibition against your activity as a real estate broker or insurance salesman. No inherent conflict of interest is presented in your situation. However, you should observe the above restraints in reference to any official actions that you might take or relationship you may have with real estate clients. 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 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. SSC /rdp Sincerely, :r /f L / i A 4'�4l ‘.....--"Sandra S. CYO istianson General Counsel