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HomeMy WebLinkAbout86-614 Wasson• David R.'Wasson, Esquire 1706 Fifth Avenue Arnold, PA 15068 Dear Mr. Wasson: Mallon Address STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 Uctoher 2n, 1986 ADVICE OF COUNSEL 86 -614 o. Re: Simultaneous Service, Township Zoning Officer, Political Party Committeeman — This responds to your request for the advice of the State Ethics Commission. Issue: Whether the Fthics Act presents any prohihitions upon a township zoning officer simultaneously serving as a political party committeeperson. Facts: You currently represent Allegheny Township in Westmoreland County, Pennsylvania and, in that respect, you have requested the advice of the State Ethics Commission. The township supervisors, in Allegheny Township, have recently appointed a man to hold the position.•of township zoning officer pursuant to the Pennsylvania's Municipalities Planning Code'. The man who was appointed to serve in this position also holds the elected position of democratic committeeman and he is Chairman of the Allegheny Township Democratic Committee. You have requested the advice of the State Ethics Commission regarding the propriety of this individual holding these positions especially in light of certain restrictions that are set forth in the Municipalities Planning Code. Discussion: At the outset, it must he noted that after a close review of your request for advice, it appears as though the question'you have presented and the response that Aou seek is one that relates to an interpretation of the Municipalities Planning Code rather than the State Ethics Act. However, we have addressed the question that you have presented within the purview of the State Ethics Act. We note, in this respect, that this Commission does not have jurisdiction to interpret other codes or provisions of law unless those codes or provisions of law somehow relate to the State Ethics Act. Generally, the State Fthics Act provides as follows: State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania David B. Wasson, Esquire October 20, 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). The above provision of the State Ethics Act is generally the primary restricted activity set forth in the State Ethics Act. Within the above provision this Commission has, on a number of occasions, reviewed simultaneous service in different positions by one individual. The case most analogous to the situation that you have presented was reviewed by the Commission in Blumling, No. 388. In that situation, the Commission was confronted with a s'i'tuation where a township commissioner, in a first class township, appointed himself to the position of zoning officer in the township. The Commission, in reviewing that matter, noted that the Municipalities Planning Code provided for the appointment of a zoning officer who may not hold any other elected office in the municipality. 53 P.S. §10614. This provision was noted specifically as it related to the State Ethics Act. The State Ethics • Act provides that no public official may use his public position in order to obtain a financial gain other than the compensation that is provided for by law. In the case noted above, the Commission found that the township commissioner had first used his position by Appointing himself to the position of zoning officer in the municipality. The Commission also found that he had received a financial gain that was not provided for by law. In fact, by compensation as a zoning hearing officer, when such would have been strictly prohibitied by statute, he, in fact, received a financial gain that was completely prohibited by law. He had received this through the use of his public office and, therefore, the Commission determined that a violation of Section 3(a) of the State Ethics Act had occurred. t In the instant situation, the individual who has been appointed to the position of zoning hearing officer is not a township'supervisor and did not participate in his own appointment to that position. Thus, it is clear, that this individual did not use his public position in order to obtain a financial gain other than the compensation provided for by law. As such, there would appear to be no implication of the State Ethics Act in this situation. Of course, while the Ethics Act presents no per se prohibition upon such simultaneous service, the State Ethics Act would require that as zoning hearing officer, this individual who is serving in a public position may not use that position in order to obtain a financial gain for himself, for a member of his immediate family or for a business in which he is associated. Additionally, the individual, in this capacity, should not engage in any other conflict of interest. 65 P.S. §403(d). In this respect, if, as zoning hearing officer, this individual is called to act upon matters wherein he may have a private or personal interests, he should abstain from participating in such matters. See, Alfano, 80 -007. David B. Wasson, Esquire October 20, 1986 Page 3 In relation to his position of party committeeperson, this Commission has, in the past, determined that persons who are appointed or elected to political party positions such as committee persons, are not covered by,the State Ethics Act and that this conclusion applies to all levels of party officials. See, Lovette, 79 -051. Thus, in this position, the individual would not be subject to the terms or restrictions of the State Ethics Act. Thus, under the State Ethics Act, no prohibitions would appear to be applicable other than those cited above. In this respect, it is realized that this Commission has not addressed the primary question which you have requested. This Commission, however, does not believe that it has the jurisdiction to answer the question as to whether the office of party committeeperson is one of 'a county or municipal level. That question is one that requires an interpretation solely of the municipal codes in question and not the State Ethics Act. Conclusion: The State Ethics Act would not prohibit a township zoning officer from serving as a party committeeperson. This individual may not use his position as a zoning officer in order to obtain a financial gain for himself, a member of his immediate family or a business which he is associated. Additionally, this individual should avoid any conflict of interest that ` develops in relation to his position as a party committeeperson. Finally, this Commission may not address questions that solely relate to the interpretation of other municipal codes without impacting upon the State Ethics Act. 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. Sincerely, ohn J. ino Gen Counsel