HomeMy WebLinkAbout81-629 BinottoPhillip J. Binotto, Jr., Esq.
325 Washington Trust Building
Washington, PA 15301
Mailing Address:
STATE ETHICS COMMISSION
P.O. BOX 1 179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
October 2, 1981
ADVICE OF COUNSEL
81 -629
RE: Zoning Hearing Board, Representation
Dear Mr. Binotto:
This responds to your letter of August 19, 1981, in
which you requested an opinion from the Ethics Commission.
Issue: You requested advice as to whether you, a member
of a Zoning Hearing Board (hereinafter the ZHB) may represent
a group of citizens before the local planning commission.
Facts: You informed as that you are a member of the North
Strabane Township Zoning Hearing Board. The Board makes
rulings on requests for special exceptions and variances
from local zoning ordinances and appeals from Board
decisions are taken to the Washington County Court of
Common Pleas. Board members are appointed by the Township
Supervisors and serve without compensation. You are an
attorney but are not the Solicitor to the Zoning Hearing
Board. A group of citizens has asked you to represent
them at a hearing before the North Strabane Township Planning
Commission The hearing will decide whether to recommend to
the Township Supervisors that a parcel of land be rezoned
as requested by a developer.
Discussion: You suggest that you are exempt from the
requirements of the Ethics Act. We assume this argument is
based on the fact that you are a member of the Bar of
the Supreme Court. This argument is based, we assume again,
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Phillip J. Binotto, Jr., Esq.
October 2, 1981
Page 2
on the decision in the case of Ballou v. State Ethics
Commission, Pa. Cmwlth., 424 A.2d 983 (1981),
currently on appeal to the Pennsylvania Supreme Court. We
do not believe this ruling exempts you, as a member of the
ZHB from the requirements of the Ethics Act. The ruling
in Ballou held only that public employees and public officials
serving as attorneys may not constitutionally be required
to file Fianacial Interest Statements under the Ethics Act.
You are an attorney, but you are not serving the ZHB in
that capacity. Ballou does not apply nor require that you
be deemed "exempt" from the Ethics Act, in general.
However, while the Ethics Act, 65 P.S. 401 prohibits
a public official from involvements which constitute a
conflict of interest, such a conflist arises only where
one individual represents interests adverse to one another.
Alfano, 80 -007. In the present case, the ZHB and the
citizens you propose to represent before the Planning
Commission do not appear to have interests which are per se
adverse.' Thus, there is no per se prohibition under the
Ethics Act to preclude this representation.
We note that should this rezoning request be submitted
to the ZHB, a different question may exist. However, you
might re- address this to us, if this situation arises.
Finally, a recent decision of the Commonwealth Court
in the case Pa. P.U.C. v. State Ethics Commission,
Pa. Comwlth. , No. 138 C.D. 1981, has held that the
activities of lawyers purporting to representing clients
may not be subject to regulation by the Ethics Act. We
believe however, that as a member of the ZHB you are not
purporting to represent clients and if you wish us to
address the question raised immediately above, please
advise.
Conclusion: The Ethics Act does not preclude your
representation of a group of citizens before the Planning
Commission of a Twonship where you serve as a member of
the Zoning Hearing Board.
Phillip J. Binotto, Jr., Esq.
October 2, 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.
SSC /lma
Sincerely,
Sandra S
General ounsel
hristianson