The URL can be used to link to this page

Home My WebLink About83-571 EckstineMr. Charles R. Eckstine P.O. Box 246 Greencastle, PA 17225 RE: Voting; Abstention; Section 3(a) Dear Mr. Eckstine: Mailing Address. STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 July 5, 1983 ADVICE OF COUNSEL 83 -571 This responds to your letter of March 14, 1983, in which you requested advice from the State Ethics Commission. Issue: You ask whether, as a Borough Councilman and real estate developer, the appearance of a conflict of interest arises when and if you vote against plans submitted to the Borough Council for approval by other real estate developers. Facts: You are Borough Councilman and real estate developer who owns and managers 43 commercial and, residential units and who owns ten acres of land zoned highway commercial in the Borough of Greencastle. According to your planning and zoning ordinances, the Borough Council makes final decision on zoning and development plans, and must sometimes pass on a zoning change or a conditional use before a developer may proceed. In your participation on Council, you must sometime vote to approve or disapprove another developer's plan. You are concerned that any votes of disapproval may be interpreted as attempts to protect your own interests, and you have requested advice from the Ethics Commission regarding the extent to which you must abstain in such matters. Discussion: The Ethics Act, 65 P.S. 401 et seq. recognizes that public office is a public trust and that the financial interest of public officials should present neither a conflict nor the appearance of a conflict with the public, trust. A Borough Councilmember is a "public official" subject to the provisions of the Ethics Act. See definitions, 65 P.S. 402. Section 3(a) of the Act states that a public official cannot use his public office or confidential information received through his holding public office to obtain financial gain for himself his family or business with which he is associated. 65 P.S. 403(a). The Ethics Act defines a business with which an official is "associated" as: State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. Charles R. Eckstine July 5, 1983 Page 2 "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or holder of stock. 65 P.S. 402. Thus, if you stand in any of the above- referenced relationships as a real estate manager, owner, or holder of interests, these constitute a "business with which you were associated" under this definition. As a Borough Council member, you would have to abstain from all participation, including discussions or votes, in matters in which you as a real estate developer have or expect to have, any such associations. The reasons for your abstention must be disclosed and made part of the public record. With regard to your voting against the plans of other developers submitted to the Borough Council, a problem may arise if, by your vote to deny or disapprove such development, you inevitably favor your own personal interests, abstention is required. Such a circumstance would arise where limited development possibilities exist or where only limited development is permitted and where by denying another developer the opportunity to operate you may effectively enhance the possibility that your development interests may be allowed to operate. See Coploff, 83 -005 and Reisinger, No. 146 -C. Where, however, there are no inherent or other restrictions on development which would mean that a vote to disapprove one developers plans would leave the door open to your development plans or interests, then there is no reason why you should not vote as you see fit. While the Commission notes your understandable concern that a vote against another developer may be interpreted as being protective of your own interests, abstention from matters in which development approvals must, by their nature, be limited, and where you indeed have an interest or a potential interest should avoid the appearance of a conflict of interest with the public trust. You should also be aware of Section 3(b) of the Act, which forbids a public official from accepting any thing of value based on any understanding that the vote or official action of the public official would be influenced thereby. 65 P.S. 403(b). Since "any thing of value" may include the promise of a legal interest in real estate, etc., you as a Borough Councilmember could not allow such a future interest to influence you in your official votes or actions. Conclusion: As a Borough Council member, you must adhere to the guidelines delineated above. You must, when it is necessary to abstain from voting on any matters, place the reasons for your abstention on the public record. Mr. Charles R. Eckstine July 5, 1983 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 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, Sandra S. Christianson General Couns•1