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HomeMy WebLinkAbout88-549 WatsonMr. Dennis A. Watson Borough of West View Pittsburgh, PA 15229 Dear Mr. Watson: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 April 13, 1988 ADVICE OF COUNSEL 88 - 549 Re: Conflict of Interest, Zoning Board Member, Borough Solicitor as Law Partner This responds to your letter of February 25, 1988, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act presents any prohibition or restrictions upon a member of a zoning hearing board when a member of his law firm is solicitor to the borough council which is the governing body of the zoning hearing board. Facts: You state that you are a resident of the West View Borough in Allegheny County and are currently chairman of the zoning hearing board who with two other members of that board are appointed by the West View Borough Council. After noting that you receive no compensation or expense reimbursement for serving on the board, you state that the zoning hearing board does act indepedently of borough council. After noting that on occasion the Borough Manager or a member of borough council or the borough solicitor may appear or testify in their individual capacity or on behalf of the borough before the zoning board, you note that the current borough solicitor is associated with your private law firm. You then advise that under decisional law a zoning board may not be represented by the borough's solicitor. You then state that you are a shareholder in the firm of Grogan, Graffam, McGinley & Lucchino, P.C. which has been recently joined by Fred E. Baxter, Jr., who is the current solicitor for the Borough of West View. After noting that Mr. Baxter's legal fees as solicitor will be received by the law firm, you request advice under the Ethics Act as to whether your service as chairman of the West View Zoning Hearing Board while Mr. Baxter serves as solicitor to the borough creates a conflict under the Ethics Act. Mr. Dennis A. Watson April 13, 1988 Page 2 Discussion: As a zoning board member for West View Borough, you are a public official within the definition of that term as set forth in the Ethics Act and the regulations of this Commission. 65 P.S. §402; 51 Pa. Code §1.1. As such, you are subject to the provisions of the Ethics Act. 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 or employee 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 or a business with which he is associated. 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 Commi ssion, Pa. Commw. , 531 A.2d 536 (1987. Thus, under this provision, a public official may not use his public position to secure benefits for himself or a member of his immediate family which are not provided for by law, Domalakes, Opinion 85 -010; likewise, the receipt of private financial gain or benefit through use of office is not permitted under this section, Huff, Opinion 84 -015. 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. Since you are a shareholder in the firm of Grogan, Graffam, McGinley & Lucchino, P.C., that is a business with which you are associated as that term is defined under the Ethics Act. Mr. Dennis A. Watson April 13, 1988 Page 3 Section 3(b) of the Ethics Act provides: 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 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). Section 3(b) of the Ethics Act must be referenced in order to provide a complete response to your inquiry. Under Section 3(b) of the Ethics Act cited above, which a public official or employee must observe, a public official or employee must neither offer nor accept anything of value on the understanding or with the intention that his judgment would be influenced thereby. It is assumed such a situation does not exist here. This Section is referenced not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Section 3. Restricted activities. (d) Other areas of possible conflict shall be addressed by the commission pursuant to paragraph (9) of section 7. 65 P.S. 403(d). Under the above provision of law, the Ethics Commission, however, is also empowered to address other areas of possible conflict pursuant to Section 3(d). 65 P.S. §403(d). Fritzinger, Opinion 80 -008; DeBenedictis, Opinion 86 -002. The parameters of the type of activity encompassed by this provision are generally reviewed in light of the preamble to the Ethics Act which enunciates the legislative intent of the Act. The intent and purpose of the Act is to strengthen the faith and confidence of the people in their government by assuring the public that the financial interests of the holders of public office present neither a conflict nor the appearance of a conflict with the public trust. A public official or employee, pursuant to this provision, is to ensure that their personal financial interests present neither a conflict nor the appearance of a conflict with the public trust. 65 P.S. §401. Such a conflict may exist where an individual represents one or more adverse interests, Alfano, Opinion 80 -007; where an individual serves in positions that are incompatible or conflicting; Nelson, Opinion 85 -009, or where such an official or employee accepts compensation to which he is not entitled. Domalakes, supra. Mr. Dennis A. Watson April 13, 1988 Page 4 Although under Section 3(a) of the Ethics Act you would not be precluded from serving as zoning board member when an associate in your firm is solicitor for the borough, under Section 3(d) of the Ethics Act you should not participate or vote in any case on the board when a member of your firm including but not limited to the borough solicitor appears before that board. You should also note your abstention of public record together with the reason 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 other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: As a zoning board member of West View Borough, you are a public official subject to the provisions of the State Ethics Act. Although under Section 3(a) of the Ethics Act you may serve as a zoning board member while an associate of your law firm serves as solicitor to the borough, under Section 3(d) of the Ethics Act you may not participate or vote in any matter on the board when a member of your firm including the borough solicitor appears in a case and you should note your abstention of public record together with the reason for your abstention. Lastly, the propriety of your proposed 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 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 w i l l 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, ate.. Da Vincent . Dopko General Counsel