Loading...
HomeMy WebLinkAbout81-588 SheetzRonald L. Sheetz, Chairman Allegheny Township Supervisors Westmoreland County, RD #3 Community Building Leachburg, PA 15656 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 June 8, 1981 ADVICE OF COUNSEL RE: Zoning Officer, Secretary - Treasurer Dear Chairman Sheetz: 81 -588 ; This responds to your letter of May 13, 1981 in which you as Chairman of the Board of Supervisors of Allegheny Township requested an opinion from the Ethics Commission. Issue: You requested Advice on the following questions: 1. May a Zoning Officer be allowed, under Act 170, to sell real estate within the Township? 2. May a Secretary - Treasurer appointed within the Township be an employee of the bank where the Township has funds deposited and from which the Township annually borrows funds? Facts: The facts as to item Number 1 above are essentially that a Zoning Officer currently engaged by the Allegheny Township Supervisors is also licensed to sell real estate within the Township. The facts as to Number 2 above are that several candidates for the position of Secretary - Treasurer are currently being interviewed. One applicant is employed by the same bank where the Township has funds deposited and from which the Township annually borrows funds. Discussion: The discussion on Number 1 listed above begins with the premise that the Zoning Officer is a "public employee" within the meaning of that term in the Ethics Act. Therefore, the Zoning Officer would have to comply with the provisions of the Ethics Act in relation to conflicts of Ronald L. Shee , Chairman June 8, 1981 Page 2 interest. The Commission has determined this a real estate salesman could not, for example, serve as the full -time professional planning, building, zoning, and code enforce- ment officer for a municipality. The Commission in such a case found that the situation posed such a potential for use and, therefore, misuse of confidential information that an inherent conflict of interest was created. Norris, 80 -053., In your case, the person serves only as Zoning Officer.' However, the Norris case and the Simmons, 79 -056 decisions of the Commission lead us to conclude that these proposed dual roles as real estate salesman and Zoning Officer cannot be accepted under the Ethics Act. In Simmons, the Commission ruled that a Zoning Officer could not operate as a home builder within the same Township where he would be respon- sible for issuing permits for his own projects. Similarly, in the case you pose, the Zoning Officer would be required to review and issue permits to actual and potential real estate clients. The Zoning Officer would be in a position to refuse such permits to the buyer /seller represented by competing real estate salesman. In such a case, the potential for actual conflict or at least the appearance of a conflict of interest on the part of the Zoning Officer is apparent and must be avoided. Avoidance can only be effectively achieved by prohibiting this dual role, at least as related to acting as real estate agent for property located within the Township. Thus, a Zoning Officer should not operate as a real estate salesman for property located within the municipality he serves. Such a Zoning Officer could sell real estate located outside the municipality. A Zoning Officer should also remember that the Ethics Act requires 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 and prohibits a client or potential client of the Zoning Officer -real estate salesman from attempting to influence the Zoning Officer's official action. No client or potential client of the Zoning Officer -real estate salesman should attempt to influence the Zoning Officer, in general. This would include the solicitation, offer, or acceptance of anything of value based on the understanding that the Zoning Officer's official action or judgment would be influenced by that thing of value. Ronald L. Sheer Chairman June 8, 1981 Page 3 In relation to your question Number 2 above, we assume that the position of appointed Secretary - Treasurer of Franklin Township would 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 fact that the Secretary- Treasurer candidate may be an employee of the same bank where the Township has funds deposited and from which the Township annually borrows funds, however, does not, per se, present a prohibited conflict of interest. However, as set forth above, no public employee or public official may use his public office or confidential information gained through the holding of public office for his personal benefit. Therefore, the amount of discretion that the Treasurer would wield in relation to the depositing of Township funds might be of some significance in your deliberations. For example, if the Secretary - Treasurer has complete discretion over the depositing of Township funds as to whether they would be deposited in his employer's bank or another bank you might want to choose to limit this discretion so that even the appearance of any conflict of interest could be avoided. In the alternative, if the depositing of Township funds is non - discretionary on behalf of the Secretary- Treasurer the mere fact that the Secretary - Treasurer candidate is employed by that bank would be of lesser import. In such a situation even the appearance of a conflict of interest would be reduced. Likewise, if the discretion of the Secretary- Treasurer is limited in relation to the borrowing of funds, which we assume to be a decision of the Township Supervisors, the fact that the Secretary- Treasurer is an employee of the bank from which this borrowing occurs does not appear to present even an appearance of a conflict of interest. Conclusion: A Zoning Officer may not sell real estate located within the Township he serves as an official. In no event may the Zoning Officer use his official position or confidential information obtained through the holding of public office for his personal benefit. The Zoning Officer may not accept anything of value, including the promise of future employment, based on the understanding that his official action would be influenced thereby. Ronald L. Shee( Chairman June 8, 1981 Page 4 In relation to your question Number 2 above, there is no inherent conflict of interest if a Secretary- Treasurer were to be appointed where that individual would also be an employee of the bank where the Township funds are deposited and from which the Township annually borrows funds. Guidance, as requested, in relation to the amount of discretion to be delegated to the Secretary- Treasurer is provided. 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, dra istianson General Co. sel