HomeMy WebLinkAbout83-529 MolnarMr. John Molnar
Cassebaum, McFall & Molnar, P.C.
134 Broadway, P.O. Box 147
Bangor, PA 18013
Mailin Address
STATE ETHICS COMMISSION
P.O. BOX 1 179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
April 6, 1983
ADVICE OF COUNSEL
RE: Township Solicitor, Conflict of Interest
Dear Mr. Molnar:
83 -529
This responds to your letter of February 24, 1983, in which you requested
advice from the State Ethics Commission.
Issue: You ask whether Section 3(e) of the Act restricts the activities of
your firm with regards to the factual situation you present in your request
for advice.
Facts: Your firm is the solicitor to various municipal governing bodies and
zoning hearing boards in Northampton County. You also represent a number of
applicants before local zoning hearing boards in municipalities that you do
not represent.
You state that a question that has presented itself from time -to -time
concerns when a governing body takes a formal position at the zoning hearing
board level in favor or in support of the applicant. Traditionally,
municipalities have had the same solicitor serve both the zoning hearing board
and the governing body. Generally, a conflict of interest sitution does not
present itself when a township is not taking a position before the zoning
hearing board.
However, a conflict of interest situation may present itself and also be
prejudicial to the outlook and when the township advocates a position at the
zoning hearing board level. You are interested in receiving an opinion on a
particular factual pattern when a variance application is filed with the
zoning hearing hoard on which the township decides to take an adversary
position as a protestor. The township authorizes its regular solicitor to
represent a township in these proceedings as advocate. In the past and future
zoning case unrelated to the application in question, the solicitor has also
represented the zoning hearing board. During the hearing in which the
township presents opposition, the zoning hearing board is represented by a
separate solicitor.
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Mr. John Molnar
March 6, 1983
Page 2
You believe that under 65 P.S. 403(e) such a procedure would be improper.
You, therefore, requested opinion regarding the factual situation presented in
your request for advice.
Discussion: It has generally been held that part -time municipal solicitors
are not to be considered "public employees" or "public officials" within the
meaning of those definitions set forth in the Ethics Act. See Ballou v. State
Ethics Commission, 436 A.2d 186 (1981). Therefore, solicitors such as your
firm are not to be considered within the scope of the Ethics Act as the Act
regulates the conduct of "public employees" or "public officials." Hence, as
the Court indicated, such solicitors are not statutorily held to cqmply with
those provisions of the Ethics Act which might otherwise be applicable to the
class of persons identified as "public employees" or "public officials." As a
result, provisions of Section 3 of the Ethics Act which regulate the conduct
of "public employees" or "public officials" would be inapplicable to your
firm.
One caution is still apparent and applicable. Specifically, Section 3(b)
of the Ethics Act requires that no person may give or accept any thing of
value on the understanding that an official's conduct would be influenced
thereby. This Section continues to apply to any "person" and I mention this
not to imply an impropriety in relation to your proposed transaction, but
merely to note its continuing applicability.
Conclusion: Provisions of Section 3 of the Ethics Act as they regulate the
conduct of the class of persons identified as "public employees" or "public
officials" or inapplicable to your law firm as part -time solicitor for this
township. As such, the firm may participate in this particular transaction
without any application of or violation of the provisions of Section 3(e) of
the Ethics Act in particular, although I note the continuing application of
some portions of the Ethics Act, as described 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.
Mr. John Molnar
April 6, 1983
Page 3
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.
CW /rdp
Sincerely,
andra S. Ch
stianson
General Cou gel