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Home My WebLink About88-566 MarsilioThomas M. Marsilio, Esquire 200 Northeastern Building Hazleton, PA 18201 Dear Mr. Marsilio: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 26, 1988 88 - 566 Re: Conflict of Interest, Township Supervisor, Voting on Rezoning of Property Adjacent to His Own This responds to your letter of April 7, 1988, in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act presents any restrictions or prohibition upon a second class township supervisor as to his voting on the rezoning of a parcel of property which is adjacent to property that is owned by the supervisor. Facts: You state that you are the solicitor for Butler Township, Luzerne County, Pennsylvania and seek advice as to whether Mr. Shelhamer, who is one of the supervisors may vote on a rezoning matter. You state that Mr. Clyde E. Sumner, a Florida resident who owns approximately 38 acres of ground in Butler Township which is currently zoned Suburban Residential, has requested that the land be rezoned to Restricted Industry. You then advise that Supervisor Robert G. Shelhamer owns 42 acres of property which is adjacent to Mr. Sumner's property and that Shelhamer has subdivided the land into three quarter acre lots. After stating your belief that no one can say with specificity whether Mr. Shelhamer could realize any gain by his voting on the rezoning of this property, you request advice from the State Ethics Commission as to the propriety of Mr. Shelhamer's voting on the rezoning request. Thomas M. Marsilio, Esquire May 26, 1988 Page 2 Discussion: As a supervisor for Butler Township Mr. Shelhamer is 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. 5402; 51 Pa. Code S1.1. As such, he is 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 Commission, 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 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 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, Thomas M. Marsilio, Esquire May 26, 1988 Page 3 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). 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. 5403(d). Fritzincrer, 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 or 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. 5401. 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, Opinion supra. In the instant matter, the rezoning relates to 38 acres of ground which is adjacent to the 42 acres of ground owned by Mr. Shelhamer. Although it is stated that there is no information Thomas M. Marsilio, Esquire May 26, 1988 Page 4 as to whether Mr. Shelhamer would realize a gain by his voting for or against the rezoning, the fact that his property is adjacent to Mr. Sumner's property, which is the subject of the zoning request, would certainly create an appearance of conflict, if not a conflict of interest, if Mr. Shelhamer were to vote on this matter; his action on the rezoning could effect the value of his own property which is adjacent. See Welz, Opinion 86 -001 where the State Ethics Commission determined that a public official could not participate in a matter even though his interest could be considered as only indirect in the matter. See also King, Opinion 85 -025 and Sowers, Opinion 80 -050 wherein the Commission determined that a public official could not participate in matters if he could derive a financial benefit. It is only in a situation where the public officials personal or private interest is remote would he be permitted to participate under the Ethics Act. Markham, Opinion 85 -013. Therefore, under Section 3(a) and 3(d) of the Ethics Act, Mr. Shelhamer should not participate in the rezoning of Mr. Sumner's property, note his abstention of public record together with the reason for his 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 supervisor for Butler Township, Mr. Shelhamer is a "public official" subject to the provisions of the Ethics Act. Under Section 3(a) and 3(d) of the Ethics Act, Mr. Shelhamer should not participate in the rezoning of property which is adjacent to his own property and should note his abstention of public record together with the reason for his abstention. Lastly, the propriety of the 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. such. This letter is a public record and will be made available as Thomas M. Marsilio, Esquire May 26, 1988 Page 5 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 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, J -:k 0-7 Vincent Dopko, General Counsel