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HomeMy WebLinkAbout86-527 SmithMr. Al Smith P.O. Box 26 New Freedom, PA 17349 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 March 17, 1986 ADVICE OF COUNSEL Re: Borough Councilmember, Voting, Zoning Ordinance Dear Mr. Smith: 86 - 527 This responds to your letter of February 19, 1986, wherein you requested the advice of the State Ethics Commission. Issue: Whether a borough councilmemher may participate in the council's consideration of a zoning ordinance that effects a business owned by a member of the horough council. Facts: You have advised that you are an elected member of the New Freedom Borough Council, York County, Pennsylvania. You are also the president and majority stockholder of AJS Incorporated, a Pennsylvania business corporation. You have advised that in 1983, prior to your election to borough council, the council voted to change the zoning of property owned by this corporation from residential to village and directed the borough solicitor to advertise and prepare appropriate ordinances. You further advise that for unknown reasons the ordinance was not prepared at that time although the York County Planning Commission and New Freedom Borough Planning Commission had recommended approval of the zoning re- classification. In 1984, approximately one year later, final passage of the ordinance was presented to the borough council and was rejected by one vote. You indicate that the area to be re- classified has been continuously used for business purposes for approximately forty years. You have further advised that it is your belief that the original zoning classification for this area, which is currently residential, was occasioned by a mistake. The matter is now heing presented, once again, to the borough council for reconsideration and you have requested the advice of the State Ethics Commission as to whether you can participate in the borough's decision to re -zone this particular property, which includes the parcel of land owned by your business enterprise. Mr. Al Smith March 17, 1986 Page 2 Discussion: As an elected member of the borough council, you are a public official as that term is defined in the State Ethics Act. 65 P.S. §402. As such, your conduct must conform to the requirements of the State Ethics Act. See Davis, 84 -012. Generally, the Ethics Act provides as follows: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Within the above provision of law, no public official may use his public position in order to obtain any financial gain for himself a member of his family or a business with which he is associated. He may not use confidential information obtained in his public position for similar purposes. The State Ethics Act defines a business with which one is associated as follows: Section 2. Definitions. "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. Clearly, as owner of AJS Incorporated, you are associated with that business within the purview of the State Ethics Act and, thus, you may not use your public position as a borough councilmember in order to obtain any financial gain or benefit for that corporation. The Commission has, on a number of occasions, reviewed similar situations involving a public official's participation in a zoning ordinance wherein he has an interest. As such, the Commission has previously determined that public officials may not participate or vote in a matter regarding a zoning ordinance or a zoning re- classification if the classification would specifically relate to property in which the public official has an interest. See Hahalis, 83 -009; Alberstadt, 85 -526; Rudnitsky, 82 -552. There is no doubt that in the instant situation you have a vested financial interest in the continued operation of the AJS Incorporated Enterprise. The passage of a borough ordinance would re- classify the use of the property on which this enterprise is located as commercial. Thus, there is no doubt that the company with which you are associated could continue to operate on this property if the borough were to re- classify the zoning for this locale. As a result, you have a vested interest of a financial nature in the borough's decision in this Mr. Al Smith March 17, 1986 Page 3 matter. Because of this interest as a public official, you may not participate in the borough's consideration, discussion and vote in this matter. We note that you have indicated your belief that the borough's consideration of this matter is merely a continuation of that which was initiated in 1983, a time when you did not serve as borough councilmember. The fact, however, that the matter was initiated at a time prior to your service from borough council and continued into a period of time when you now serve as borough council does not alleviate the fact that you are now a public official and may not participate in the matter wherein you have a vested fi nanci al interest. The proposition that a publi c official may not participate or otherwise vote on a matter wherein he has such an interests is well established in the law. See Genkinger v. New Castle, 368 Pa. 547, 84 A.2d 303, (1951); Raynovich v. Romans, 450 Pa. 391, 299 A.2d 301, (1973); Department of State v. Mount Joy Borough, 66 D & C 251, (1948). As a result of the foregoing, you are advised that you must abstain from all participation in the borough's consideration of the zoning ordinance in this matter. Your abstention in this matter should be publicly noted and recorded in appropriate borough minutes. C. Conclusion: A borough councilmember may not participate in the borough's consideration and decision on a zoning re- classification ordinance which specifically effects property on which a corporation that is owned by the borough councilmember is located. Said borough councilmember must abstain from all participation in the matter and his abstention must be publicly noted and recorded. 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. e y, . Conti no G eral Counsel