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HomeMy WebLinkAbout81-548 Abromsonc Dear Mr. Abromson: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 April 9, 1981 ADVICE OF COUNSEL Nathan F. Abromson, Esq. 81 -548 653 Main Street Mount Pleasant, PA 15666 RE: Municipal Authority, Zoning Board of Adjustment, Dual Employment This responds to your letter of March 2, 1981, in which you as Solicitor for the Mount Pleasant Municipal Authority, requested an opinion from the Ethics Commission. Issue: In your letter you request advice as to whether a member of a municipal authority may also serve on a Borough Zoning Board of Adjustment. Facts: You informed us that Mr. Ronald M. Kozak is an appointed member of both the Mount Pleasant Municipal Authority and Mount Pleasant Borough Zoning Board of Adjustment. The Borough Solicitor advised the Borough Council that holding these two positions could be a conflict of interest. Borough Council then passed a resolution asking Mr. Kozak to resign from one of these positions. Discussion: At the outset we note that the jurisdiction of the Ethics Commission is strictly limited by the Ethics Act, 65 P.S. §401 et seq. This Advice addresses the narrow question of whether the Ethics Act is violated by the situation described above and will not address any other issue raised or opinions rendered in relation to the Borough's request that Mr. Kozak resign one of his two posts or his response to that request. As an appointed member of the Mount Pleasant Municipal Authority and the Mount Pleasant Borough Zoning Board of Adjust- ment Mr. Kozak (hereinafter Member) is a public official as that term is used in the Ethics Act, 65 P.S. §402. A public official is "any elected or appointed official in the Executive, Legislative or Judicial Branch of the State or any political subdivision thereof..." Id. The Member's conduct is governed by the Ethics Act. See Forney v. State Ethics Commission, Pa. Cmwlth. , A.2d (No. 1003 C.D. 1980). Nathan F. Abromson, Esq. April 9, 1981 Page 2 Act 170 does not, however, prohibit simultaneous membership on a Municipal Authority and a Zoning Board of Adjustment. The Commission has held that dual employment of an attorney by different governmental bodies does not per se violate the conflict of interest provisions of the Act. See, King, 79 -034. By analogy, the Act does not prevent an individual from serving two governmental bodies such as a Municipal Authority and a Zoning Board of Adjustment. See Scarpiniti, 80 -729; Sacavage, 81 -512. The Member should be aware that no public official can use any 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. 65 P.S. §403(a). The Member may not accept anything of value on the understanding that his vote or official action will be influenced thereby. 65 P.S. §403(b). Finally, the Member may not contract for more than $500 with the Municipal Authority or the Zoning Board of Adjustment unless the contract is awarded through an open and public process. 65 P.S. §403(c). The Member would be obliged to refrain from voting on any contract regardless of amount that he, a Member of his family or a business with which the Member is associated makes with the Zoning Board of Adjustment or the Authority. The reasons for this abstention must be placed on the public record. Keep in mind that "immediate family" is defined in the Ethics Act as a "spouse residing in the person's household and minor dependent children." Conclusion: A member of a Municipal Authority and the Municipal Zoning Board of Adjustment is a public official subject to Act 170. The Ethics Act does not prohibit simultaneous service on two governmental bodies. The Member, however, may not: (1) use public office or confidential information received through holding public office -to obtain financial gain for himself, his family or a business with which he is associated; (2) accept anything of value on the understanding that his official action would be influenced thereby; (3) contract (value greater than $500) with the Municipal Authority or the Zoning Board of Adjustment unless the contract is awarded in an open and public process. (4) vote on any contract regardless of amount between the the Zoning Board or the Authority and himself, a member of his immediate family or a business with which the member is associated. Nathan F. Abromson, Esq. April 9, 1981 Page 3 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 Si cerely, Kph andra S. C stianson General Cou sel