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HomeMy WebLinkAbout86-562 GaffneyJohn F. Gaffney, Esquire Ambler Borough 12 East Butler Avenue P. 0. Box 119 Ambler, PA 19002 Re: Advice of Counsel, No. 86 -562 Dear Mr. Gaffney: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 June 20, 1986 As you are aware on May 20, 1986, the State Ethics Commission issued Advice of Counsel, No. 86 -562, regarding the activities of members of the Ambler Borough Council. At the time that the request was made, it appeared from your letter requesting the Advice of Counsel, that Mr. Frank Morasco, the Borough Councilman whose activities were the suhject of your request concurred in the decision to seek such an advice. As a result, the document of May 20, 1986, was issued to you as borough solicitor. We have recently received, however, from Mr. Morasco a memo dated June 10, 1986, the substance of which indicates he had not concurred in the decision to request such an advice. As you may or may not be aware, the State Ethics Commission may only issue an advisory letter of the type issued on May 20, 1986, at the request of the individual whose activities are in question. In this respect, the Commission will not issue such an advisory opinion to a third party. The Commission may issue such an advice or opinion to a representative of the individual whose conduct is in question hut only if that individual specifically concurs in the request for such advice. In the instant situation, it is clear from Mr. Morasco's memo of June 10, 1986, that he had not concurred in the council's decision to request such an advice. This, however, was not set forth in your letter of request dated May 1, 1986. Because of the unusual circumstanes in this situation, it is incumbent upon me to withdraw the previously issued advice in that it was not issued to the John F. Gaffney. Esqui re June 20, 1986 Page 2 individual who had a question about his duties and responsibilities under the State Ethics Act. As such, please be advised that Advice of Counsel, No. 86 -562, is hereby declared void and of no consequence. Mr. Morasco may, of course, seek the advice of the State Ethics Commission regarding this issue. If you have any further questions regarding this matter, please do not hesitate to contact me. cc: Frank Morasco 31 East Butler Avenue Ambler, PA 19002 JJC /sfd Very truly yours, ohn J. .ntino Gener. Counsel John F. Gaffney, Esquire Amhler Borough 12 East Butler Avenue P.O. Box 119 Ambler, PA 19002 Dear Mr. Gaffney: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 May 20, 1986 ADVICE OF COUNSEL 86 - 562 Re: Conflict of Interest, Borough Councilmemher, Participation in Matter Regarding Landlord This responds to your letter of May 1, 1986, wherein you requested the advice of the State Ethics Commission. Issue: A. Whether a member of borough council may participate in a matter involving property on which he resides and which is owned by his daughter. R. Whether a memher of borough council may participate in a matter regarding property owned by his brother. Facts: As Solicitor of Ambler Borough, you have requested the advice of the State Ethics Commission in reference to the above issue. You have advised that the Borough of Amhler has enacted an Ordinance #809, which, in part, prohibits a property owner from allowing hedges to grow within certain areas as set forth in the ordinance. The horough has employed the assistance of volunteers and the horough manager in order to determine when and where violations of this ordinance occur. You have advised that a memher of horough council, Frank Marasco, currently resides on property that has been reported to be in violation of the borough ordinance. This property is owned by Councilman Marasco's son -in -law and daughter. You further advise that a second Borough Councilmemher, Anthony Decemhrino, is the hrother of the individual who owns this property. That is, Mr. Marasco's son -in -law is Mr. Decemhrino's brother. John F. Gaffney, Esqui re May 20, 1986 Page 2 You indicate in your letter of request that Councilman Morasco, since January, has been Chairman of the Public Safety Committee of the borough council. He has both before his term on council, as well as after, actively taken steps to prevent the prosecution of the owners of the property on which he resides for the vi olations of the borough ordi nance. Duri ng a recent meeting of the borough council, the issue regarding the prosecution of the individuals who own this property came before borough council. You have advised that initially the members of the council were going to act on this matter but that based upon your opinion, as well as objections from other members of council, the vote was delayed pending your receipt of an opinion from the State Ethics Commission. Discussion: Initially, it should be noted that as members of borough council, the individuals here involved are public officials within the purview of the State Ethics Act. 65 P.S. §402. As such, their conduct must conform to the requirements of the Act. See Davis, 84 -012. Generally, the State 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). Under the foregoing provision of law, a public official may not use his public position in order to obtain any financial gain for himself or for a member of his immediate family. Within the above provison of law, this Commission has, on a number of occasions, determined that no public official may participate in a matter wherein a financial gain ; may enure to his own benefit or to the benefit of his immediate family. The State Ethics Act defines member of one's immediate family as follows: Section 2. Definitions. "Immediate family." A spouse residing in the person's household and minor dependent children. 65 P.S. 402. Based upon the above definition of law, it is clear that the daughter of Councilman Morasco is not within the definition of immediate family member as set forth above. The brother of Councilman Decembrino is also outside of that definitio o. Therefore, insofar as their actions relate to these individuals, the actvities of both councilmen would not be within the purview of Section 403(a, insofar as this issue is reviewed under the above definition. John F. Gaffney, Esquire May 20, 1986 Page 3 The analysis contained herein, however, must go beyond the specific situation as it involves the daughter of councilman Morasco. In this respect, we note that Mr. Morasco is a resident of the property owned by his daughter. In this respect, she is technically his landlord. The property in question is one on which he resides and, as such, any benefit obtained for that property, as well as for the owner of that property, his landlord, could be considered to benefit him as the tenant. There is no doubt that any favorable action he takes, in relation to his own landlord, would certainly benefit or appear to benefit his own position as a tenant. Thus, insofar as Councilman Morasco is concerned, it is clear that his activities as a public official in relation to this matter, should be restricted insofar as they relate to the property on which he resides. Thus, Mr. Morasco must abstain from participating in any matter related to this particular situation. In relation to Mr. Decembrino, as he has no other connection with the property as set forth in your letter of request, we do not see any restriction upon his participation in this activity. This assumes, however that Mr. Decembrino has no connection with the property in question. In addition to the foregoing, it should be noted that the State Ethics Act also provides that the Commission may address other areas of possible conflict. 65 P.S. §403(d). Such a conflict develops when an individual, who is a public official, attempts to serve one or more interests that are adverse. See Allen, 79 -024; Fritzinger, 80 -008. The parameters of the type of activity encompassed by this particular provision of law must be determined by reviewing the purpose and intent of the Ethics Act as set forth in the preamble thereto. 65 P.S. §401. Pursuant to that provision, the Ethics Act is promulgated in order to ensure the public that the financial interest of their official neither conflict nor appear to conflict with the public trust. In the instant situation, there is no doubt that a conflict of interest would be occasioned, at least insofar as Councilman Morasco is concerned. As a member of borough council, he is responsible for acting in the best interest of the borough and of the borough residents. In this respect, council saw fit to enact an ordinance regarding certain standards in relation to property. The ordinance provided for appropriate punishment for violations of that provision of law. In this respect, council determined that the health, welfare and safety of the borough would be advanced by the enactment of this ordinance. As a member of borough council, Mr. Morasco is obliged to participate and act on behalf of the borough enforcing such ordinances. On the other hand,•Mr. Morasco is clearly personally involved in this situation as both a resident of the property in question and as the father of the individual who owns this property. Clearly, his attempts to have the case from being prosecuted, would appear to be in the interest of his personal position as a resident of the property. Thus, we believe that Mr. Morasco would be placed in a conflict position and that on one hand he would be required to serve the interest of the borough, while on the other hand, he is personally involved in this situation as a resident of the property. Thus, under Section 403(d) of the State Ethics Act, we believe that his complete abstention in this matter is required. John F. Gaffney, Esquire May 20, 1986 Page 4 In relation to Councilman Decembrino, as noted above, while the Commission does not believe his abstention is required as a matter of law, it is believed that it would be the better practice for him to abstain in this situation. This Commission, in the past, has determined under the previously noted provision of the Act regarding possible conflicts of interests, that public officials would be better advised to abstain in situations that involve members of their family outside of the definition as set forth above. In this respect, the Commission has determined for example, that a public official should not participate in a matter involving his adult son, O'Reilly, 83 -012; his adult daughter, Cumberledge, No. 216 -R, his sister, Leete, 82 -005. Thus, while abstention may not be technically required by the provisions of Section 403(a) of the Act, it is advised that such abstention would be the better practice. Conclusion: As members of borough council, the individuals involved in this situation are clearly public officials within the purview of the State Ethics Act. A member of borough council who currently resides on the property that is the subject of borough action and who is the father of the individual who owns this property, may not participate in the borough's decision regarding this property under both 403(a) and 403(d) of the State Ethics Act. The borough councilmember who is the brother of the individual who owns this property, while not technically required to abstain, is advised that such abstention would be the better practice. 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, i f 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. Si n ohn J. in Gener Counsel