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HomeMy WebLinkAbout88-556 ScottWilliam Z. Scott, Jr., Esq. 42 West Patterson Street Lansford, PA 18232 Dear Mr. Scott: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 26, 1988 Section 2. Definitions. 88 556 Re: Simultaneous Service, Planning Commissioner, Surveyor, Public Official This responds to your letter of March 3, 1988, in which you requested advice from the State Ethics Commission. Issue: Whether a planning commissioner is a public official as that term is defined under the Ethics Act and, if so, whether a planning commissioner may simultaneously serve as a professional surveyor. Facts: In your advice request, you ask whether it is permissible under the Ethics Act for a professional surveyor to be a member of a township planning commission. After noting that he would not be paid for his services and that he would not vote or participate in any discussions regarding projects that he had worked on or had reason to believe that he might work on in the future, you ask advice as to whether there are any restrictions or prohibitions under the Ethics Act on such activity. Discussion: As to whether a member of a planning commission is a "public official" under the Ethics Act, the foregoing term is defined as follows: "Public Official." Any elected or appointed official in the Executive, Legislative or Judicial Branch of the State or any political subdivision thereof, provided that it shall not include members of advisory boards that William Z. Scott, Jr., Esq. April 26, 190', Page 2 not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense, or to otherwise exercise the power of the State or any political subdivision thereof. "Public official" shall not include any appointed official who receives no compensation other than reimbursement for actual expenses. 65 P.S. S402. The regulations of the State Ethics Commission provide the following of public official: Section 1.1 Definitions. Public officials - -- An elected or appointed official in the executive, legislative or judicial b7ranch of the government of the Commonwealth or its political subdivisions. The terms does not include a member of an advisory board -rho has no authority to spend public funds other than reimbursement for personal expenses or to otherwise exercise the power of the State or a political subdivision thereof. (i) The following criteria will be used to determine if the exception in this paragraph is applicable: (A) The body will be deemed to have the power to expend public funds if the body may commit funds or may otherwise make payment of monies, enter into contracts, invest funds held in reserves, make loans or grants, borrow money, issue bonds, employ staff, purchase, lease, acquire or sell real or personal property without the consent or approval of the governing body and the effect of the power to expend public funds has a greater than de minimus effect on the interest of a person. (B) The body will be deemed to have the authority to otherwise exer=cise the power of the State or a political subdivision if one of the following exists: William Z. Scott, Jr., Esq. April 26, 1988 Page 3 (I) The body makes binding decisions or orders adjudicating substantive issues which are appealable to a body or person other than the governing authority. (II) The body exercises a basic power of government and performs essential governmental functions. (III) The governing authority is bound by statute or ordinance to accept and enforce the rulings of the body. (IV) The body may compel the governing authority to act in accordance with the body's decisions or restrain the governing authority from acting contrary to the body's decisions. (V) The body makes independent decisions which are effective without approval of the governing authority. (VI) The body may adopt, amend and repeal resolutions, rules, regulations, or ordinances. (VII) The body has the power of eminent domain, or condemnation. (VIII) The enabling legislation of the body indicates that the body is established for exercising public powers of the Commonwealth or a political subdivision. 51 Pa. Code X1.1. Assuming that the planning commission on which this individual sits is an advisory board and does not exercise the power of a political subdivision so as to meet the criteria set forth in the regulation, then that member of that planning commission would not be a "public official" as that term is defined in the Ethics Act. Under the foregoing situation, the Ethics Act would not restrict the planning commissioner from simultaneously serving as a professional surveyor. William Z. Scott, Jr., Esq. April 26, 1988 Page 4 It is further provided in Section 3(b) of the Ethics Act: Section 3(b) of the Ethics Act provides: (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immeciate family or a business with which he ire 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 employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Under Section 3(b) of the Ethics Act cited above, one must neither offer nor accept anything of value on the understandir. or with the intention that his official judgment would be influenced thereby. It is assumed such a situation does not exist he Reference to this Section is added not to indicate that anv such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Conclusion: A member of a planning commission which is merely advisory in nature and does not exercise the power of a political subdivision would not be a "public official" provided the criteria set forth in Regulation 1.1 of the Ethics Commission are satisfied. Under the foregoing circumstances, that planning commissioner would not be restricted by the Ethics Act from simultaneously serving as a professional surveyor. 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. such. This letter is a public record and will be made available as 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 William Z. Scott, Jr., Esq. April 26, 1988 Page 5 Commission will be scheduled and a former 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 52.12. Sincerely, Vincent J. Dopko, General Counsel