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HomeMy WebLinkAbout86-584A HattenMr. Earl R. Hatton Box 676, U.S. Route 1 at Long Wood Kennett Square, PA 19348 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 December 8, 1987 ADVICE OF COUNSEL 86 -584A Re: Conflict of Interest, Township Supervisor, Township Real Estate Sales Agent, Voting on Zoning Ordinances Dear Mr. Hatton: This responds to your letter of November 9, 1987, wherein you requested additional advice of the State Ethics Commission. Issue: Whether a township supervisor, who is a real estate associate in the township, may vote on zoning and subdivision ordinances. Facts: You state that you are the Chairman of the Board of Supervisors in Penn Township and are engaged in selling real estate. You state that you requested an advice from the Commission which issued Advice of Counsel No. 86 -584, incorporated herein by reference. Discussion: As a township supervisor, you are a "public official" as that term is defined in the Ethics Act. 65 P.S. §402. As such, you are subject to the provisions of the Ethics Act and the restrictions therein apply to you. Section 3(a) of the Ethics Act provides: 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). Mr. Earl R. Hatton December 8, 1987 Page 2 Under this provision, the Ethics Commission has determined that the use of office by a public official to obtain a gain or benefit for himself which is not provided for in law constitutes a "financial gain other than compensation provided for by law." See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). See also Yocabet v. State Ethics Commission, Pa. Commw. (1987) filed on September 18, 1987 at 834 C.D. 1986. In the definitional section of the Ethics Act, "business with which he 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. As previously noted, you are associated with O'Neill and Associates, Realtors and, therefore, you may not use your public position in order to obtain a financial gain for yourself or for the business with which you are associated, O'Neill and Associates. It is further provided in Section 3(b) of the Ethics Act: 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). Specifically, the Ethics Act provides that no public official may use his public office, confidential information received through his holding public office to obtain a financial gain for himself or a business with which he is associated and no public official may receive anything of value, including the promise of future employment, on the understanding that his official conduct will be influenced thereby. See Section 3(a) and 3(b) of the Ethics Act, 65 P.S. §403(a) and (b). Mr. Earl R. Hatton December 8, 1987 Page 3 Reference must also be made to Section 3(d) of the Ethics Act which allows the Commission to review other areas of conflicts of interests. Generally, the types of activities encompassed by this particular provision are generally determined through a review of the intent of the State Ethics Act. Generally, the State Ethics Act was promulgated in order to insure the public that the interest of their officials do not conflict with the public trust or create the appearance of a conflict of interest. In the instant situation, when matters concerning zoning and subdivision ordinances, before you as township supervisor, under Section 3(d) of the Ethics Act, you may not participate nor vote on these matters wherein any individual has employed your services as a real estate broker or wherein there are parcels of realty in which you are involved as a private individual or as a real estate professional. As previously noted, you should neither vote nor participate in the above situations nor as to any property or individuals with whom you may be involved in the foreseeable future. Further, as was previously noted, you should not represent any particular individual property owner or developer before the Township Board of Supervisors. In these situations, you must abstain from voting or participating and note your abstention of public record together with the reason for your public abstention. Lastly, the Ethics Commission has only addressed your question under the Ethics Act; it has not considered the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act. Conclusion: As a township supervisor, you are a "public official" subject to the provisions of the State Ethics Act. Advice No. 86 -088, which was issued on July 21, 1986 is incorporated herein by reference and the restrictions and limitations set forth therein are applicable. As a township supervisor, you may not use your official position to obtain work as a real estate broker, you may not participate or vote on zoning and subdivision ordinances that relate to particular parcel of property for which you are the listing agent or which you individually own or which a particular individual has employed your professional services and also as to any property or individuals with whom you would be foreseeably involved in the future. The reason for your abstention must be publicly noted and recorded in the appropriate township records. Lastly, you 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. Mr. Earl R. Hatton December 8, 1987 Page 4 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. Sincerely, Vincent J. Dopko General Counsel