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HomeMy WebLinkAbout88-508 GrahamMr. George R. Graham, Jr. West Bradford Township 1535 Poorhouse Road Downingtown, PA 19335 Dear Mr. Graham: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 February 8, 1988 ADVICE OF COUNSEL 88 -508 Re: Conflict of Interest, Township Supervisor, Voting on Ordinance Affecting his Property This responds to your letter of January 5, 1988, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act imposes any prohibition or restriction upon a township supervisor in voting upon an ordinance which would vacate a portion of a road which borders on property that is jointly owned by the supervisor and his wife. Facts: You state that you are a supervisor for West Bradford Township and that you jointly own a parcel of land with your wife which is used as your principle residence and which will be affected by a pending ordinance that would vacate a portion of the public road on which your property borders. You state that as a result of the vacation of the road your property will have less frontage and that you will not seek any type of remuneration or gain for the loss in property value associated with the loss of frontage. You further state that the road in question was a PennDot road until May 8, 1984 at which time it was inspected and found to contribute to fatalities, injuries and property damage at a given intersection in the township. You state that at that time, the road was turned back to the township with funding for the purpose of improving an adjacent road to alleviate the dangerous intersection. You note that after the improvements to the adjacent road were completed, a proposed ordinance was offered for the purpose of vacationing the portion of the old road. You note that the residents bordering on the portion of the vacated road have an alternate access. You also note that at a October 1987 meeting of the supervisors, when the vacation ordinance was discussed in the context of whether a public hearing should be held, one supervisor voted in favor, one voted against and one abstained. You state that in the November meeting, the public hearing was again proposed and the motion passed by a 2 to 1 vote. You also state that you do not intend to vote on the vacation ordinance unless there is a deadlock in which case you would intend to break the deadlock keeping in mind the health, safety and welfare of the township residents. You conclude by asking advice as to whether you could participate in this matter under this Ethics Act. Mr. George R. Graham, Jr. February 8, 1988 Page 2 Discussion: As a township supervisor for West Bradford Township, you are a "public official" as that term is defined under the Ethics Act. 65 P.S. §402; Volpe Order, No. 579 -R. As such, you are subject to the provisions of the rthics l-ct and the restrictions therein are applicable 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). Section 3(a) basically provides that a public official may not use his public office or confidential information to obtain a financial gain other than compensation as provided for by law for himself or a member of his immediate family. 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 or a member of his immediate family which is not provided for in law constitutes a "financial gain other than compensation provided for by law." These determinations have been appealed to the Commonwealth Court of Pennsylvania which has affirmed the Orders of the Commission. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). See also Yocabet v. State Ethics Commission, Pa. Commw. , 531 A.2d 536 (1987). Of course, under this provision, a public official may not use his public position to secure any financial gain for himself or his immediate family unless it is provided for by law. Domalakes Opinion, 85 -010. Therefore, under Section 3(a) of the Ethics Act, a public official may not use his public office through participation or voting as to an ordinance when he has a pecuniary interest therein. Black Advice, 87 -573. See Borough of Youngsville v. Zoning Hearing Board, Pa. Commw. Ct. , 450 A.2d 1086 (1982), wherein Commonwealth Court held that a municipal officer must disqualify himself from any proceeding in which he had a personal or pecuniary interest. See also Commonwealth v. Raudenbush, 249 Pa. 86, 99 A 555 (1915); Reckner v. German Township, 341 Pa. 375, 19 A.2d 402, (1941). In the instant situation, since it appears that the ordinance will directly affect the value of your property, regardless of whether it enhances or diminishes the value of the property, you would have a pecuniary interest in the matter. Therefore, under section 3(a) of the Ethics Act, you may not use your public office through participation or voting as to the vacation ordinance. Paranthetically, although it is noted that you have not specified as to how you voted in the November meeting, the propriety of that action cannot be considered in any event because it is _ast action; an advice can only be issued to public officials /employees as to their Prospective conduct. Mr. George R. Graham, Jr. February 8, 1988 Page 3 In addition to the foregoing provision of law, the State Ethics Commission may address other areas of possible conflicts of interest. 65 P.S. §403(d). The parameters of the types of activities encompassed by this provision of law may generally be determi ned by reviewing the purpose and intent of the Ethics Act. Generally, the State Ethics Act was promulgated in order to insure the public trust that the interests of their employees do not conflict with the public trust. Therefore, under Section 3(d) of the Ethics Act, you should not participate or vote relative to the vacation ordinance regarding the road which borders on your property in light of your pecuniary interest in the matter. In this regard, you should note your abstention of public record together with the reasons for your abstention. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct has not been considered. Conclusion: As a supervisor for West Bradford Township, you are a "public official" subject to the provisions of the Ethics Act. Under Sections 3(a) and 3(d) of the Ethics Act you may not participate or vote regarding the vacation ordinance which relates to the road that borders on your property in light of your pecuniary interest and you should note your abstention of public record together with the reasons for your abstention. Lastly the propriety of your proposed course of conduct has only been addressed under the 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 comnritted 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, Vincent Dopko General Counsel