HomeMy WebLinkAbout86-621 DozorBarry C. nozor, Esquire
N. E. Corner Mac Dade Rlvd. A
Clifton Avenue
Collingdale, PA 1902.3
Mailing Address
State Ethics Commission
308 Finance Building
P. 0. Box 11470
Harrisburg, Pa. 17108 -1470
Novemher 6, 1986
ADVICE OF COUNSEL
Re: Conflict of Interest, Township Commissioner, Memher, Law Firm
near Mr. nozor:
86 -621
This responds to your letter of October 21, 1986, wherein you requested
the advice of the State Ethics Commission.
Issue: Whether the State Ethics Act presents any prohihitions upon activities
as a township commissioner where you are a memher of a local law firm that
practices hefore township governmental bodies.
Discussion: You have advised that you are currently a memher of the township
hoard of commissioners in Marple Township, Delaware County, Pennsylvania. You
are also a memher of a local law firm. A developer has recently inquired as
to whether a partner or an associate in your law firm could represent him in
regard to a land development project that is currently pending in Marple
Township. In relation to this land development project, the memher of your
firm would he required to represent this individual hefore the township zoning
hearing hoard, the planning commission, other hoards and commissions within
the township as well as the township hoard of commissioners. The law firm or
partner involved, would he paid by the individual client and would receive no
township fonds in relation to this matter. In relation to this situation, you
have requested the advice of the State Ethics Commission.
Discussion: As a township commissioner, you are clearly a public official as
that term is defined in the State Ethics Act. 65 P.S. $402. As such, your
conduct must conform to the requirements of that law. Mlakar, 84 -011.
Generally, the State Ethics Act provides no per se prohibitions that would
prohihit a township commissioner from heing a memher of a law firm that
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Barry C. Dozor. Esquire
November 6, 1986
Page 2
represents clients in the locality wherein the public official serves.
Generally, questions regardi ng conflicts of i nterest, i n relation to the
practice of law. must be addressed by the Pennsylvania Supreme Court. See,
Pennsylvania Public Utility Commission Bar Association v. Thornburgh, 62 Pa.
Commw. Ct. 88, 434 A.2d 1327, (1981). Affirmed per curiam, 498 Pa. 589, 450
A.2d 613, (1982). Insofar as your activities as a public official, however,
are concerned, this Commission may address your activities within the purview
of the State Ethics Act.
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 hi s hol di ng public office to obtain financial gai n
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).
Business with which one is associated is also defined in the Act 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.
Within the above provisions of law, you, as a public official, may not use
your public position in order to obtain any financial gain for the business
with which you are associated, i.e. the law firm. You may not use
confidential information obtained in your position with the township for
similar purposes. In relation to the provisions of the Ethics Act, therefore,
you would be requi red, as a public official, to abstain from any township
matter relating to a plan in which your law firm has an interest through the
representation of a client. Such abstention would require that you do not
participate in any aspects of the township's consideration of that situation.
Your abstention, ,n such matters, should be appropriately noted and recorded.
See, Shoran, 86 -585. Your abstention would be required in light of the fact
that even though your law firm would not be contracting with your governmental
body or receiving funds from that body, township decisions favorable to
clients represented by your firm would most definitely inure to the benefit of
that entity. As such, the general provisions of the State Ethics Act, as
noted above, would be applicable. See, Sowers, 80 -050; Shirk, 86 -601. As
long as you appropriately comply with the above provisions, the Ethics Act
would then place no prohibitons upon the conduct as noted in your letter of
request.
Barry C. Dozor, Esquire
November 6, 1986
Page 3
Conclusion: Generally, the State Ethics Act presents no per se prohibiton
upon a township commissioners law firm representing individuals before
governmental bodies within the township. As a public official, the
commissioner must abstain from participating, to any extent, in a matter in
which his firm is involved. Such abstention should be publicly noted and
recorded.
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.
ohn'J
Gener. oun