Loading...
HomeMy WebLinkAbout81-545 DavisJames T. Davis, Esq. 99 East Main Street Uniontown, PA 15401 Dear Mr. Davis: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 April 10, 1981 ADVICE OF COUNSEL 81 -545 RE: Township Planning Commission, Real Estate Salesman, Dual Employment This responds to your letter of March 16, 1981, in which you, as Solicitor for South Union Township, requested an opinion from the State Ethics Commission. Issue: You requested advice as to whether the Ethics Act prohibits a real estate salesman from serving on the Township Planning Commission. Facts: You informed us that a licensed real estate salesman sells real estate within the Township while serving on the South Union Township Planning Commission. Discussion: The Ethics Act, 65 P.S. §401 et seq., does not prohibit a real estate salesman from serving as a member of a Planning Commission. This is not an inherent conflict of interest. There is an inherent conflict of interest, for example, when a full -time professional Planning, Zoning and Building Code Enforcement Officer is also a real estate salesman. Norris, 80 -053. The conflict was found there because "It is difficult... to find an example or situation in which (the professional Planning, Zoning, and Building Code Enforcement Officer) would act as salesman for a Borough property where that property was not at some time subject to his review, jurisdiction, or decision." Id. However, a Planning Commission member, such as you describe, does not have such a pervasive influence over every part of the planning, zoning, inspecting and licensing process as was the case in Norris. Accordingly, there is no conflict of interest per se in a Planning Commission member selling real estate. Nevertheless, a Planning Commission member must observe the strictures the Ethics Act places on his conduct as a member of the Planning Commission. The Act proscribes use of an official position to obtain personal financial gain. 65 P.S. .J d1Lt C D 1. L d V I J, L4. April 10, 1981 Page 2 §403(a). The Planning Commission member may not use his posi- tion to obtain work as a real estate salesman. Sowers, 80 -050. The Act also forbids a client or potential client of the Planning Commission member attempting to influence the Planning Commissioner's vote or official action by holding out the promise of future employment as a real estate salesman. Another area of conflict is created when the Planning Commissioner votes on matters that affect his real estate clients. The Ethics Commission has held that if the Planning Commissioner knows at the time of his vote that he has been or can legitimately expect to be asked to work for a client, or that he will offer his services to a particular prospective client, the Planning Commissioner must refrain from voting on the matter and place the reason for the abstention on the public record. Sowers, 80 -050. Thus, the Planning Commission member should not vote on a plan presented by or affecting a client or prospective client. The reason for the abstention should be placed on the public record. The Ethics Act, specifically states that a public official may not use confidential information received 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 Planning Commissioner may not use confi- dential information received as a member of the Planning Commission in his real estate business. Conclusion: The Ethics Act does not prevent a real estate salesman from serving as a member of a Planning Commission. The Planning Commissioner may not use his official position to obtain work as a real estate salesman. Nor may a client of the Commissioner /salesman attempt to influence the Commissioner's official actions. If the Planning Commissioner knows at the time of an official action on a matter affecting real estate that he has been or can legitimately expect to be employed by the real estate client or that he will offer his services to a prospec- tive client he must abstain from the official action and place the reason for the abstention on the public record. Such a Planning Commissioner may not use confidential information received through holding public office to obtain financial gain for himself, his immediate family, or a business with which he is associated. He may not provide such confiden- tial information to any real estate client. 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. April 10, 1981 Page 3 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 Sincerely, andra S. ristianson General Counsel