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HomeMy WebLinkAbout81-546 CapinskiSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 April 10, 1981 ADVICE OF COUNSEL John A. Capinski 602 East Fourth Street Swedesburg, Bridgeport, PA 19405 81 -546 RE: Townhisp Supervisor, Real Estate Salesman, Dual Employment Dear Mr. Capinski: This responds to your letter of March 20, 1981, in which you, as a Supervisor of Upper Merion Township, requested an Opinion from the Ethics Commission. Issue: In your letter you request advice as to whether the Ethics Act prohibits a Township Supervisor from working as a real estate salesman. Facts: You informed us that you are running for re- election as an incumbent candidate for supervisor in Upper Merion Township. You have been offered employment as a real estate salesman, but declined employment because you believe it unethical to be a salesman while serving as Supervisor. Discussion: Initially we note that this Advice only discusses the impact of the Ethics Act on the situation you described. We cannot address issues of personal ethics and /or morality, where your own judgment and discretion must be your guide. As an elected Township Supervisor you are a public official within the meaning of the Ethics Act, 65 P.S. §401 et seq. Section 2 of Act 170 defines "public official" as any elected or appointed official in the Executive, Legislative or Judicial branch of the state or any political subdivision thereof. The Act imposes certain restrictions on the conduct of public officials such as Township Supervisors. The Act does not, however, totally forbid a real estate salesman 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 member of the public in general." A real estate salesman 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- John A. Capinski April 10, 1981 Page 2 tion in such a case creates an inherent conflict of interest because "It is difficult... to find an example or situation in which (the professional Planning, Building, Zoning and 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." Norris, 80 -053. A Township Supervisor does not have such a pervasive influence over every part of the planning, zoning, inspection and licen- sing process as in Norris to create an inherent conflict of interest between the duties of a Supervisor and the job of a real estate salesman. Nevertheless, a Supervisor /salesman must observe the strictures the Ethics Act places upon his activities while in public office. The Ethics Act clearly proscribes use of an official position as Supervisor to obtain work as a real estate salesman. Sowers, 80 -050. Just as clearly the Act prohibits a client or potential client of the Supervisor attempting to influence the Supervisor's vote by holding out the promise of future employment. Id. Another area of conflict is created when the Supervisor advocates or 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 zoning change that affect his real estate clients. The reason for the absten- tion 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. 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 salesman. The Supervisor must not use his official position to obtain work as a real estate salesman. Nor may a client of the Supervisor /salesman attempt to influence the Supervisor's vote. If the Supervisor knows at the time of an official vote or action on a matter affecting his real estate client that he has been or can legitimately expect to be asked to work for the John A. Capinski April 10, 1981 Page 3 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 received 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 provide such confidential information to a client of his real estate business. This discussion is general. Particular circumstances and activities of individuals other than yourself which might appear to be contrary to this advice, of course, would have to be addressed in the context of another request for advice from those other persons or in a formal complaint proceeding. However, adherence to this Advice as to future conduct will provide the protections set forth below as to future conduct. 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. SW /rdp Sincerely, Sandra S. General Counsel