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HomeMy WebLinkAbout82-601 TomarMr. Laurence I. Tomar 56 South Main Street P.O. Box 293 Yardley, PA 19067 Mailing Address. STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 December 20, 1982 ADVICE OF COUNSEL RE: Architect; Planning Commissioner; Land Developer as Client Dear Mr. Tomar: 82 This responds to your letter of September 2, 1982, at which time, you, as Borough Solicitor, requested advice from the State Ethics Commission on behalf of your client, Mr. Erik P. Axelson. Issue: You ask whether your client, as a member of both the Yardley Borough Council and the Borough Planning Commission and who is also an employee of an architectural firm, may vote on any proposed development plan regarding a developer who utilizes the services of the firm for which your client works. Facts: Your client, Mr. Erik P. Axelson, is employed as a planner for an architectural firm based in Philadelphia. He has no equity interest in the firm. A potential developer of land located in Yardley Borough hereinafter, the Borough, has inquired of Mr. Axelson's firm about preparing a development plan for land it owns within the Borough. The development plan might include, among other things, an application to the Borough Council for re-zoning. Mr. Axelson sits both on the Borough Council and as a member of the Borough Planning Commission. Discussion: The Pennsylvania State Ethics Act, 65 P.S. §401 et seq. was enacted to assure the public that "the financial interests of holders of or candidates for public office present neither a conflict nor the appearance of a conflict with the public trust." As a member of the Borough Council your client is a public official and, therefore, Mr. Axelson's conduct must conform to the requirements of the Ethics Act. The pertinent provisions of the Act are Sections 3(a) and 3(b). See 65 P.S. 403(a) and (b) which provide that no public official may use his public office or confidential information received through public office to obtain financial gain for himself other than compensation provided by law, and that no public official may received any thing of value, including the promise of future employment, on the understanding that his official conduct will be influenced thereby. See also Section 1 of the Ethics Act, 65 P.S. 401. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. Laurence I. Tomar December 20, 1982 Page 2 With regard to the hiring of Mr. Axelson's firm by the above - referenced developer, there is no per se violation of the Ethics Act unless Mr. Axelson used his official influence to obtain his firm's employment. Barring that possibility, Mr. Axelson's firm is free to work for the developer. However, with regard to Mr. Axelson's voting on any proposed development plan concerning the developer with which his firm will be, or is, working, an Opinion issued by the Commission, Sowers, 80 -050, necessarily precludes Mr. Axelson from engaging in such a vote. In that case, a Township Supervisor who owned construction equipment sought to obtain grading work from a developer, whose plans would be subject to review by the Township Supervisors, including the Supervisor with whom the developer would be subcontracting. Besides addressing the above concerns, i.e., compliance with Sections 3(a) and 3(b), the Commission concluded that if the Supervisor knew at the time of his vote that he had been, or could legitimately expect to be asked to work for the developer or that he would offer his services to the developer, then he should refrain from voting, in his official capacity, on the developer's project. The Commission also indicated that if the Supervisor had voted on a project and subsequently obtained employment with the developer on whose project he had voted, such employment should be publicly disclosed. Further, the official, having been subsequently employed by the developer would be required to abstain from official actions vis -a -vis the developer which might be subject to further official review or approval. While, as you indicate, Mr. Axelson is merely an employee of the architectural firm, that firm is a "business with which he is associated" under Section 3(a) of the Act. He, therefore, should refrain from voting as a Borough Council member or as a Planning Commission member on any matter arising regarding the above - referenced developer by which his firm is engaged or to whom his firm expects to offer services. If such subjects, including the project herein discussed, are presented to the Borough Council or Planning Commission members, Mr. Axelson should publicly disclose the extent,of his involvement in the matter and abstain from participation in discussions and votes on the matter. Such disclosure should be made at a public meeting and be incorporated into the minutes of that meeting. The Ethics Act was not designed to preclude public officials from engaging in business with the public in general, but these restrictions must be imposed in order to assure the public that neither a conflict nor the appearance of a conflict with the public interest exists. Conclusion: As a public official, your client's conduct in relation to his employment with the architectural firm should be governed according to the guidelines expressed above. Specifically, Mr. Axelson must: Mr. Laurence I. Tomar December 20, 1982 Page 3 CW /rdp 1) Not use his official position to obtain any business for the firm by which he is employed; 2) Not utilize confidential information gained in his official capacity to obtain any business; 3) Refrain from participating in discussions and votes on matters which would directly affect the clients of the architectural firm by which he is employed and which are presented by persons (developers) who will seek or have sought the services of such firm or to whom the firm has offered its services with respect to the specific project subject to official review or approval; 4) Refrain from participating in discussions and votes on matters which would directly affect the architectural firm's clients and which are presented by clients for whom the firm worked on the matter subject to official review or approval; 5 Make public his relationship and that of the architectural firm, with the developer and the reasons for his abstention as required by numbers 3 and 4 immediately above. 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 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. Sincerely, Sandra S. Christianson General Counsel