HomeMy WebLinkAbout86-601 ShirkKenelm L. Shirk, III, Esquire
P.O. Box 1552
Lancaster, PA 17603 -1552
State Ethics Commission
308 Finance Building
P. O. Box 11470
Harrisburg, Pa. 17108-1470
September 15, 1986
ADVICE OF COUNSEL
Re: Township Zoning Officer, Private Client Plans
Dear Mr. Shirk:
86 -601
This responds to your letter of August 15, 1986, wherein you requested
the advice of the State Ethics Commission.
Issue: Whether a municipal zoning officer may also serve as a consultant to
developers and prepare plans for private clients which will thereafter be
submitted to the municipal entities which he serves in an official capacity.
Facts: On behalf of the Clay Township Zoning Officer, you have requested the
advice of the State Ethics Commission in relation to the above issue. You
advise that Clay Township employs a zoning officer. The Clay Township
Subdivision and Land Development Ordinance provides that when the township
planning commission and, thereafter, the township board of supervisors review
a proposed land development or subdivision plan, written comments and reports
are to he received in advance from the professionals serving the township,
including the township engineer and the township zoning officer. In this
respect, the township zoning officer, under the provisions of the Ordinance,
has a responsibility to review plans for compliance with the township
regulations.
You have advised that the Clay Township Zoning Officer has been
approached in a private capacity by developers and asked if he would he
willing to prepare land development plans. You advise that it is also
possible that once those plans are prepared, the zoning officer, as the
preparer of such a plan, would be required to appear before the Clay
Township's Planning Commission and Board of Supervisors to explain the plan on
behalf of the developer. You have requested the advice of the State Ethics
Commission in relation to the propriety of this proposed course of action.
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Kenelm L. Shirk, III, Esquire
September 15, 1986
Page 2
Discussion: Initially, we note that the Pennsylvania State Ethics Act, 65
P.S. 401 et seq., was enacted to insure the public that the financial
interests of holders of or candidates for public office "present neither a
conflict of interest nor the appearance of a conflict with the public trust."
As Township Zoning Officer, this individual is a public official and,
therefore, required to comply with the provisions of the State Ethics Act.
See, Bryan, 80 -014.
As you have indicated, this person also does work for private clients.
On occasion, he prepares plans for these clients which must be presented to
the planning commission, which we have concluded in prior opinions, is a
separate distinct entity from the municipality which established the planning
commission. Crosswell, 83 -565. Such plans also may be submitted to the
township board of supervisors. While the planning commission and the
governing municipal body are considered seperate entities, a relationship does
exist between the planning commission and the township, and one of its
responsibilities is to make reports and recommendations to the municipality
regarding the approval of plans. Likewise, with respect to the zoning
officer's duties and responsibilities vis -a -vis the municipality, it is clear
that he must be in a position to provide professional services and
recommendations on an impartial basis to the municipality with regard to plans
and their approval or rejection, given the recommendations of the planning
commission.
The Pennsylvania Municipalities Planning. Code provides for the duties of
the zoning officer as follows:
For the administration of a zoning ordinance, a zoning officer, who may
not hold any elective office in the municipality, shall be appointed. The
zoning officer shall administer the zoning ordinance in accordance with its
literal terms and shall not have the power to permit any construction or use
or change of use which does not conform to the zoning ordinace. 53 P.S.
§10614.
Given these duties and responsibilities we must review the requirements
of the State Ethics Act as applicable to public officials and public
employees. Specifically, the Ethics Act provides that no public official may
use his pubic office or confidential information received through his holding
public office to obtain 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 (b) of the Ethics
Act, 65 P.S. 403(a) and (b). Thus, as a public official within the
municipality, the zoning officer must observe these specific requirements of
the Ethics Act when he undertakes the task of providing professional services
and recommending approval or disapproval of plans to the municipality as
reviewed by the planning commission or the supervisors.
Kenelm L. Shirk, III, Esquire
September 15, 1986
Page 3
As a zoning officer, this person may be faced with a situation where the
planning commission has been asked to approve or make a recommendation to the
municipality, with respect to plans prepared by this person as a private
engineer or by a member of his firm. In such a situation, the zoning officer
should publicly disclose the extent of his involvement in the preparation of
the plans that are being submitted to the municipality or other governmental
bodies within the municipality. Additionally, he should abstain from
participating in review, recommendations and discussions regarding the action
on such plans. Such disclosure should be made at a public meeting and should
be incorporated in the minutes of that meeting. See, Sowers, 80 -050.
This conclusion derives from the fact that the zoning officer must insure
that his conduct presents neither a conflict or the appearance of a conflict
with the public trust. Previously, rulings of the Commission indicate that as
a general rule, a public official or employee may not review, approve, or
inspect or take any official action in which he might be interested as an
individual. For example, the Commission concluded that a zoning officer who
is also a developer could not issue permits to himself. Simmons, 79 -056.
Similarly, the Commission has ruled that a zoning officer is prohibited from
being a real estate agent in the township where he serves. Norris, 80 -053.
The Commission has also concluded that a developer who is an elected township
supervisor could not inspect or approve his own work as a developer. See
Sowers, supra. With respect to auditing, Commission rulings also indicate
that an auditor may not audit the township books, where the spouse of the
auditor serves as supervisor. Restivo, 80 -518 and Detweiler, 81 -648.
Additionally, in order to avoid any question as to the propriety of this
persons conduct, it would be the better practice not to represent any private
client before the municipal bodies that he serves.
Conclusion: As a public official serving as municipal zoning officer, this
individual's conduct, in relation to this public post and private employment,
should be governed by guidelines expressed above. Specifically, in his
capacity as zoning officer, he must:
1. not use his official position to obtain any business in a private
capacity as;
2. not utilize confidential information gained through his official
position;
3. refrain from participating in discussions, review, or recommendations
on matters which directly relate to clients he served in a private capacity
which may or will be subject to the review and approval and recommendation
authority of a planning commission and /or subsequently reviewed by the
municipality itself.
Kenelm L. Shirk, III, Esquire
September 15, 1986
Page 4
4. make public his relationship to such a private clients with respect
to any plans or recommendations that may come before the municipality for
final or further review and approval; and
5. not review or approve in his capacity as zoning officer on
behalf of the municipality, any plans on which he or a business with which
he is associated worked in his private capacity.
6. it would also be the better practice for the person not to personally
represent private clients before his own governmental body.
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 ncely,
ohn anti no
General Counsel