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HomeMy WebLinkAbout82-566 ColeThomas P. Cole, II, Solicitor Township of North Huntingdon Town House, 11279 Central Highway North Huntingdon, PA 15642 Dear Mr. Cole: Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 August 5, 1982 ADVICE OF COUNSEL 82 -566 RE: Government Study Commission, Zoning Hearing Board, Planning Director, Potential Conflicts This responds to your letter of June 30, 1982, in which you requested advice from the State Ethics Commission. Issue: You requested advice as to whether or not there are any per se prohi- bitions in the following circumstances: 1. Where the present Chairman of the Township's Zoning Hearing Board would be elected to and serve on the Government Study Commission; 2. Whether the wife of the Township's Planning Director would be elected to and serve on the Government Study Commission; 3. Where the mother -in -law of the Planning Director of the Township, who is also a school guard, would be elected to and serve on the Government Study Commission; 4. Where the Chairman and spokesperson for a citizens organization would be elected to and serve as Chairman of the Government Study Commission. Facts: As Solicitor for the Township, North Huntingdon, (hereinafter, the Township) you indicate that the Township, under the provisions of the Pennsyl- vania Municipalities Planning Code, has established and maintains a Zoning Hearing Board (hereinafter, the Board). The Township has also recently elected a Government Study Commission (hereinafter, the Commission). The Commission has a limited frame of reference and a time span for operation and any recommendations made by this Commission would have to go before the public on a referendum. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Thomas P. Cole, II August 5, 1982 Page 2 You indicate that the present chairman of the Township's Zoning Board has also been elected to serve on the Commission. In relation to this circum- stance we assume that as a member of the Zoning Hearing Board the individual is paid and is, therefore, to be considered a "public official" within the confines of that definition as expressed in the Ethics Act. See 65 P.S. 402. Likewise, as an elected member of the Commission we assume that this indivi- dual will participate in decisions of that Commission. The State Ethics Commission has previously ruled that where a Government Study Commission has the power to expend funds other than to reimburse themselves for actual expenses and such funds are expended in the performance of their obligations of reviewing and recommending changes to the governmental structure, they should be deemed other than advisory and, therefore, the members of such a Commission are also to be considered public officials for purposes of the Ethics Act. Hetrick, 80 -029. Notwithstanding the fact that the individual who serves as chairman of the Board and as a member of the Government Study Commission may be considered a "public official" for each of these roles, there is no per se prohibition against him serving in both capacities. Specifically, the Commission has indicated a prohibited conflict of interest exists only where the interests being served in each role which a public official undertakes are adverse to each other. Alfano, 80 -007. There does not appear to be any reason to believe that the interests of this indivi- dual serving as a member of the Zoning Hearing Board and as a member of the Government Study Commission would necessarily be adverse to each other. Thus, there is no per se prohibition in this situation. Moving to the question of whether or not the wife of the Planning Director for the Township could serve on the Commission, we observe first that we assume that this Planning Director is a "public employee" within the confines of the definition of that term as contained in the Ethics Act. See 65 P.S. 402. Even given this assumption, however, there does not appear to be any per se prohibition in the Ethics Act under the circumstances you presented in relation to the wife of the Planning Director serving on the Commission. The interests which this individual would serve does not appear to be adverse to each other. Third, the situation which you present in that the mother -in -law (Rita Sinclair) of the Planning Director has also been elected to serve as a Govern- ment Study Commissioner does not appear to present any prohibited conflict. This is true, notwithstanding the fact that she (Rita Sinclair) also serves as a school guard who is appointed by the County Commissioners in Westmoreland County but is paid by the Township. Thomas P. Cole, II August 5, 1982 Page 3 Finally, there does not appear to be any per se prohibition if the Chair- man of a local citizens organization referred to as COPS (Citizens Overseeing Public Spending) would also serve as a member of the Commission. In this situation the individual involved, Michael Kutchak, would not be prohibited from serving in these capacities simultaneously. However, Mr. Kutchak should be aware of the potential for a conflict between the interests he is to repre- sent as a Commissioner and the interests that he might be expected to repre- sent as chairman or spokesman of COPS. These potential conflicts, however, are not so broad as to require that he be prohibited from this dual service. Such conflicts could be resolved on a case -by -case basis when and if COPS is to be represented or present issues or recommendations to the Commission. Mr. Kutchak may need to recuse himself from reviewing these presentations as a Commissioner on a case -by -case basis. Conclusion: The situations which you present do not appear to require the individuals involved to refrain from participation in the activities of the Commission except as possibly related to the Kutchak -COPS situation or to generally refrain from serving as members of the Government Study Commission. 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. 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 will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. SSC /rdp This letter is a public record and will be made available as such. Sincerely, Sandra S. Chri-'ianson General Couns-1