HomeMy WebLinkAbout86-625 BarbinWilliam Gleason Rarhin, Esquire
Suite 350, Penn Traffic Rldq,
Johnstown, Pennsylvania 15901
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
November 18, 1986
ADVICE OF COUNSEL
86 -625
Pe: Member, Zoning Nearing Board, Application for Special Use Permit
Dear Mr. Rarhin:
This responds to your letter of October 23, 1986, wherein you have
requested the advice of the State Ethics Commission.
Issue: Whether a member of a zoning hearing hoard may apply to the hoard for
a special use permit.
Facts: You advise that you currently serve as the Rarr Township, Cambria
County Solicitor. In this respect, you have requested the advice of the State
Fthics Commission regarding Rarr Township's effort to appoint a zoning hearing
hoard. The Rarr Township Supervisors are currently considering a zoning
ordinance which would, in effect, control gas well and other items of
environmental ground water concern in the township. in December, 1986, it is
the intention of the township hoard of supervisors to select three township
residents who will serve on a township zoning hearing hoard. A major part of
the duties of the township zoning hearing hoard will he to consider
applications for special use permits for the drilling of natural gas wells.
Part of the duties of the zoning hearing hoard will he to make findings of
fact and establish conditions regarding the drilling of gas wells in the
township. One of the individuals who will he sitting on the zoning hearing
hoard, may, in the future, wish to apply for a gas well permit. Recause of
this potential, you have requested the advice of the State Ethics Commission
as to whether there would he any prohibitions upon this individual within the
purview of the State Ethics Act.
Discussion: For the purposes of this advice, we will assume that the memhers
of the zoning hearing hoard are puhlic officials within the purview of the
State Ethics Act. 65 P.S. , s402. As such, their conduct must conform to the
requirements of that law. Generally, the State Ethics Act provides no per se
or ahsolute prohibition upon an individual who has certain private business
William Gleason Barbi n, Esquire
November 18, 1986
Page 2
enterprises from serving on a municipality's governing body or any board or
commission thereof. In this respect, the Commission has determined, for
example, that there would be no prohibition on an individual who is a private
developer serving as a township zoning officer. Simmons, 79 -056. Similarly,
individuals who are engaged in the private engineering profession may also
serve as the municipal engineer. Bryan, 80 -014.
The Ethics Act does, however, provide as follows:
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
ether 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, this Commission has generally determined
that individuals who are serving the public interest, in a position of an
official capacity, may not, through that public position, obtain financial
gains to benefit either themselves, a member of their immediate family, which
would include their spouse, or any business with which they are associated.
As such, this Commission has determined that a zoning officer, who serves as
noted above, could not issue permits to himself. Similarly, the Commission
has concluded that a developer who is an elected township supervisor could not
inspect or approve his own work as a developer. Sowers, 80 -050. In this
respect, any individual who performs in official capacity, in the public
interest, could not review the work or consider the award of permits,
contracts., or any benefit to their own entity or family member. Restivo,
80 -051. Thus, while the Ethics Act would place no per se prohibitions upon
the appointment of an individual to the zoning hearing Doard who may, in the
future, apply for a special use permit from that board, the Commission rulings
as well as the Ethics Act would require that this individual abstain from
participating in the board's discussions, review, consideration, and final
decision regarding that matter. Similarly, the individual's abstention in
Cris matter should be publicly noted and appropriately recorded in the board's
mi nute .
Additionally, we note that this Commission may address other areas of
conflict of interest. 65 P.S. §403(d). In this respect, while the Commission
cannot envision every potential conflict of interest that may develop, the
individual involved in this situation is adviked that he may seek the future
advice of this Commission regarding areas that are not specifically addressed
herein. In this - espect, we note that conflicts of interest can develop in
William Gleason Barbi n, Esquire
November 18, 1986
Page 3
any given situation. For example, if the member of the zoning hearing board
were required to vote in relation to a matter that does not specifically or
directly relate to his own interest but that may impact upon those interests,
a conflict of interest could possibly develop. For example, if the number of
permits that the zoning hearing board could issue were limited or if the
zoning hearing board member were called upon to vote on a matter that relates
to a competitor, a conflict of interest may develop and it may be perceived in
such situations that he is using his public position in order to cast negative
votes against the interests of other individuals so as to preserve the
financial interest of his own entity or business. Thus, in such situation,
that individual may wish to seek the further advice of this Commission.
Finally, we note that the Ethics Act 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).
We make reference to this provision of law, not to imply that there has
or will be any violation thereof, but only to provide a complete respore to
the question that you have posed. The above provision of law could be
implicated in situations where a member of a zoning hearing board would agree
to vote for the interest of a fellow member in return for that individual's
affirmative vote on his own interest. Thus, you are cautioned as to . he
existence of the above provision and should act in accordance Herewith.
Conclusion: The State Ethics Act presents no per se prohibiti6n on a member
of a zoning hearing board applying to that board for a speci al use p:mmit.
The individual should conform his conduct to the requirements of the State
Ethics Act as noted above.
Pursuant to Section 7(9)(ii), this Advice is a complete efen_,e 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.
William Gleason Barbin, Esquire
November 18, 1986
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.
Since
ohn J.
Gener Counsel