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HomeMy WebLinkAbout81-618 NastasiDear Mr. Nastasi: Joseph F. Nastasi 1011 Ridge Road Sellersville, PA 18960 Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 September 11, 1981 ADVICE OF COUNSEL 81 -618 RE: Planning Commission, Real Estate Purchase Charles Wilson, Esquire 2 West Butler Street New Britain, PA 18901 This responds to your letter of August 19, 1981, in which you requested an opinion from the Ethics Commission. Issue: You asked for advice as to whether the Ethics Act was violated by your purchase of land after signing the approval for a subdivision of that land. Facts: You informed us that you are a member of the West Rockhill Planning Commission. You and another person agreed to buy 1.874 acres•of ground from the Mobile (sic) Oil Company. Before the sale could be completed the parcel containing the 1.874 acres had to be subdivided. Pursuant to the Pennsylvania Municipalities Planning Code the sub- division application was made; the Bucks County Planning Commission reviewed the application to determine whether it complied with the West Rockhill Subdivision Ordinance. The Bucks County Planning Commission recommended approval of the proposed subdivision on February 13, 1981. The recommenda- tion was sent to the West Rockhill Township Board of Super- visors and the West Rockhill Planning Commission. On February 16, 1981 the West Rockhill Planning Commission approved the subdivision. You had informed the acting Chairman, Ray Perilli, of your interest in the property at least two months prior to the vote on February 16, 1981, and you did not vote on the subdivision proposal. In your capacity as Secretary of the West Rockhill Planning Commission you signed the approved plan, as did Acting Chairman Perilli. The Township Supervisors approved the subdivision and the sale was consummated on March 24, 1981. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Joseph F. Nastasc Charles Wilson, squire September 11, 1981 Page 2 On July 6, 1981 the West Rockhill Board of Supervisurs requested your resignation from the Planning Commission on the ground that you used your position and your vote on the Planning Commission to approve the subdivision for your own financial benefit. The Supervisors suggested that there was a conflict of interest prohibited by the Ethics Act and the Commission's Opinion in Norris, 80 -039. Discussion: Initially, we note that this Advice is based on the facts as you presented them, which we assume to be true. The efficacy of this Advice as a shield against the unitive provisions of the Act is absolutely dependent upon t h e accuracy and veracity of the statements in your letter of the August 19, 1981. This Advice does not preclude the possibility of an independent investigation by the Ethics Commission. If such an investigation as required or under- taken, reveals facts different from those you provided, the Commission will proceed accordingly. The Ethics Act provides that no public official shall use his public office or confidential information received as a public official to obtain financial gain for himself. 65 P.S. §403(a). The Act would have been violated if you used your position on the West Rockhill Planning Commission or confidential information received as a member of the Planning Commission to obtain the subdivision of the property for your purchase. In the facts as you presented them to us there is no evidence that you used your public office or confidential information to insure that the subdivision plan was approved. The mere fact that you purchased this real estate is not violative of the Ethics Act. Until and unless it appears that you misused your office in this purchase or the subdivision required to affect this purchase, there is no violation of Section 3(a). Merely signing a plan as a ministerial act as required by your role as Secretary of the Planning Commission does not alter this conclusion. The facts you related do not demonstrate a situation similar to that in Norris, 80 -053. Frankly, Norris did not deal with the purchase of real estate by a public official or public employee. In Norris a real estate salesman was also a borough planner, a zoning officer and a director of economic development. As salesman Norris was intimately and inextricably tied to the regulatory process. No amount of public notice or abstention from voting could remove him from a conflict between his role as a real estate salesman and an Joseph F. Nastasi Charles Wilson, Esquire September 11, 1981 Page 3 issuer of licenses, citations, and permits. You portrayed your role in the zoning process as much more limited than that at issue in Norris. If you abstained from voting on the subdivision plan and give notice of your interest in the property you substantially complied with Commission decisions on avoiding even the appearance of a conflict of interest. See Howard, 79 -044. Accordingly, there is no requirement under the Ethics Act that you resign from the Planning Commission. Conclusion: As Secretary of a Planning Commission you may sign a subdivision plan for a property in which you are interested and which you eventually purchased if you: (1) did not use your official position to obtain the approval; and (2) did not use confidential information to secure the approval or the land; (3) abstained from voting on the proposal; (4) gave notice of your interest in the land and subdivision plan. However, this notice, referred to in (4) above should be placed on the public record of the Planning Commission. This should be made cler. However, we do not believe that the Ethics Act requires your resignation from the Planning Commission in this regard. Pursuant to Section 7(9 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, lido � a dra S. C ristianson General Co nsel