HomeMy WebLinkAbout86-584 HattenEarl R. Hatton
Box 676, U.S.
Route 1 at Long Wood
Kennett Square, PA 19348
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
July 21, 1986
ADVICE OF COUNSEL
86 -584
RE: Conflict of Interest, Township Supervisor, Real Estate Sales Associate
Dear Mr. Hatton:
This responds to your letter of June 23, 1986, wherein you requested the
advice of the State Ethics Commission.
Issue: Whether a township supervisor may act as a real estate associate in
the township in which he is a public official.
Facts: You advise that you are currently Chairman of the Board of Township
Supervisors for Penn Township, Chester County Pennsylvania. You advise that
you are also employed professionally as a Real Estate Sales Associate with
Century 21, O'Neill and Associates. In this capacity you are the listing
agent regarding 342 acres of real estate in Penn Township. You have requested
the advice of the State Ethics Commission as to whether the State Ethics Act
would place any prohibitions upon your activities as a private real estate
sales associate.
Discussion: As a township supervisor, you are clearly a public official as
that term is defined in the State Ethics Act. 65 P.S. §402. Your conduct,
therefore, must conform to the requirements of that law. Sowers, 80 -050;
Welz, 86 -001.
The particular issue that you have presented is one that has been
addressed by the Commission on previous occasions. At the outset, it should
be noted that you have provided very limited facts in relation to your request
and, therefore, the advice that is contained herein would be general in
nature. As such, if more specific questions should arise during the course of
your conduct, it may be advisable to seek the further advice of this
Commission. Generally, the State Ethics Act provides as follows:
Earl R. Hatton
July 21, 1986
Page 2
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, it is clear that a public official may not
use, in any way, his public position or any confidential information obtained
in that position to obtain a financial gain for himself or for a business with
which he is associated. Business with which one is associated is defined 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.
In this respect, you are clearly associated with O'Neill and Associates
and you may, therefore, not use your public position as Chairman of the Board
of Township Supervisors in Penn Township to obtain a financial gain for
yourself or O'Neil and Associates. In this respect, the Commission has
previously advised that a Township Supervisor who also acts as a real estate
broker in the same township may not use his public position or any
confidential information that may have been obtained through his public
position in order to obtain listings in his private capacity. See Dennis,
81 -520; Rudnitsky, 81 -525. In addition to this specific requirement, it is
also clear that you may not participate, as a public official, in any matter
that comes before the township that involves particular property for which you
have acted as the real estate agent or broker. This would also require that
you may not participate in a matter that involves a client for whom you have
provided similar professional services. This would be applicable not only to
those particular clients and to that particular property for which you have
already acted as a real estate broker but would also include any property or
individuals with whom you will forceivably be involved in the future.
The Ethics Act provides, in this respect, that this Commission may
address other areas of possible conflict. 65 P.S. §403(d). Generally, such a
conflict would develop in any situation where the financial interests of the
public official would conflict with the public trust. 65 P.S. §401. Thus,
this Commission has determined in the past that an actual conflict of interest
would be created if the supervisor would be called upon to vote on matters
Earl R. Hatton
July 21, 1986
Page 3
that affected his real estate clients. If the supervisor knows or has a
reasonable expectation at the time that he is called upon to vote on a matter
that he may be asked to do work on behalf of a client or that would involve a
particular parcel of ground for which he will be the listing agent, the
supervisor should refrain from voting on such matter and place the reason for
his abstention on the public record. Shirk, 81 -533.
The above restrictions would also apply, for example, in situations where
you as a township supervisor would be called upon to participate in township
deci sions regardi ng zoni ng, planni ng, and approvi ng development pl ans that are
submitted by an individual who has employed your services as a real estate
broker, or that involve parcels of ground with which you were involved as a
private real estate professional.
In addition to the foregoing, the State Ethics Act also provides as
follows:
Section 3. Restricted activities.
(b) No person shall offer or give to a public official or
public employee or candidate for public office or a member
of his immediate family or a business with which he is
associated, and no public official or public employee or
candidate for public office shall solicit or accept,
anything of value, including a gift, loan, political
contribution, reward, or promise of future employment
based on any understanding that the vote, official action,
or judgment of the public official or public employee or
candidate for public office would be influenced thereby.
65 P.S. 403(b).
This particular provision of the State Ethics Act is referenced herein not to
imply any wrong doing but rather to provide a complete response to the
question you have raised. The above provision of law could clearly come in to
play if, for example, you as a township supervisor participate in a matter
involving a particular piece of property and approve, in your public capacity,
matters involving that property and shortly thereafter obtain the listing to
market said property. In this respect, if you as a township supervisor have
already acted in a matter that involves a particular piece of property, it may
be the better practice to forego any future employment in relation to that
property. As noted, however, this advice is general in nature and does not
relate to any specific factual circumstances as none have been provided in
relation to this request.
Earl R. Hatton
July 21, 1986
Page 4
Finally, under the general provisions of the Ethics Act which allow the
Commission to address other areas of possible conflict, it would also be
advisable for you not to represent any particular individual, property owner,
or developer before the township board of supervisors on which you serve.
Conclusion: As the township supervisor, you are a public official subject to
the requirements of the State Ethics Act. While no inherent conflict of
interests is presented, a supervisor who is also a private real estate broker
in the same township, the supervisor may not use his official position to
obtain work as a real estate broker. Such a supervisor may not participate in
any matter that comes before the township board of supervisors, that relates
to a particular parcel of property for which he was the listing agent or in
relation to a particular individual who employed his professional services.
The supervisor may not use any confidential information which has been
obtained through his public position in order to obtain a private client or
his real estate employer. If a. supervisor knows at the time of an official
vote or action on a matter relating to a client or properties with which he
was or maybe involved, he must abstain from voting thereon. The reason for
his abstention must be publicly noted and recorded in appropriate township
records. Finally, the township supervisor should not represent any private
clients before the township board of supervisors.
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.
Si ncerel
n J . GQ�YCT no
Gener Counsel