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HomeMy WebLinkAbout88-567 MartinSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 ADVICE OF COUNSEL May 26, 1988 Mr. Thomas E. Martin, Jr., Esquire 201 S. Broad Street P.O. Box 392 Kennett Square, PA 19348 Re: Conflict of Interest, Public Official, Township Supervisor, Rezoning, Agricultural Security Area, Subdivision Plan by Brother of Supervisor Dear Mr. Martin: 88 -567 This responds to your letter of April 5, 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 township supervisor from voting upon a rezoning request and a petition to create an agricultural security area which arose after a brother of one of the supervisors submitted a subdivision plan to the township planning commission regarding a parcel of land in the township. Facts: You state that you represent the board of supervisors of West Marlborough Township, Chester County, and that you also represent the individual supervisor whose conduct is subject to the advice request. You note that West Marlborough Township is a rural municipality consisting of approximately 17 square miles wherein two petitions have been submitted to the board of supervisors: one requesting designation of the entire township as an agricultural security area and the second seeking a rezoning of approximately two - thirds of the township from its current residential zoning to an agricultural zoning with a 10 acre minimum lot size. After noting that two of the three supervisors are landowners within the proposed area of rezoning, you advise that their land holdings are insignificant relative to the total area to be rezoned. You then express your view that the supervisors should not be obligated to recuse themselves from the rezoning matter because of their ownership of land in the Thomas E. Martin, Jr., Esquire May 26, 1988 Page 2 area which is subject to the rezoning request. You then state that the proceedings to rezone and to create the agricultural security area arose after a brother of one of the supervisors submitted a subdivision proposal to the township planning commission regarding an 11 acre parcel of land that he owned wherein he sought a subdivision into six or eight smaller parcels. After the foregoing submission, you state that a number of local citizens, who are desirous of maintaining the rural atmosphere, instituted the current rezoning request and petition to create the agricultural security area. You then raise a second question as to whether the supervisor whose brother submitted the subdivision plan should recuse himself from these matters. You state that the supervisor in question is ready to recuse himself although the remaining supervisors have 4.ndicated their desire that he not abstain. You then express your view that you do not feel that such a recusal is required. You conclude by requesting an opinion from the State Ethics Commission regarding the two inquiries which you have posed. Discussion: As a supervisor for West Marlborough Township, the supervisor 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. §402; 51 Pa. Code X1.1. As such, his conduct 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 Thomas E. Martin, Jr., Esquire May 26, 1988 Page 3 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 2. Definitions. "Immediate family." A spouse residing in the person's household and minor dependent children. 65 P.S. 5402. Since immediate family is defined to only include a spouse or minor dependent child, the provision of Section 3(a) would not include his brother. Therefore, under Section 3(a) of the Ethics Act and the definition of "immediate family," there is no prohibition upon the township supervisor as to voting upon a matter which would directly affect the subdivision plan submitted by his brother. 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, 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 Thomas E. Martin, Jr., Esquire May 26, 1988 Page 4 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). Fritzinqer, 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. §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, Opinion supra. In relation to the above cited sections of law, the Commission has determined that the definitional limitations applicable to the other Sections of the Act are not relevant to questions addressed under Section 3(e). Leete, Opinion 82 -005. As such, the Commission has placed restrictions upon various actions of public official's and employees when acting upon matters that involve relatives outside of the previously cited definition. O'Reilly, Opinion 83 -012. Thus, for example, the Commission has determined that a public official may not participate in the employment selection process where the official's adult son is an applicant. See O'Reilly, Opinion 83 -012. Thomas E. Martin, Jr., Esquire May 26, 1988 Page 5 Likewise, in Leete, Opinion, 82 -005, the Commission concluded that a county commissioner could not sit on a salary board and vote the salary of her brother as Director of the county planning agency without engaging in conduct which would appear to conflict with the public trust. See also Lewis, Advice 85 -558; Ceraso, Advice 85 -575. Although there is no prohibition under section 3(a) of the Ethics Act as previously noted as to the above activity, the Commission has determined under Section 3(d) that this type of activity creates the appearance of a conflict of interest where a public official uses his public office in favor of a relative who is not within the definition of "immediate family." Therefore, under Section 3(d) of the Ethics Act, the township supervisor may not use public office to vote on a rezoning request or agricultural security area which came about because of the submission a subdivision plan submitted by the brother of the supervisor. As to whether the two supervisors who are landowners within the area which is subject to a rezoning could participate, there would be no prohibition under 3(a) or 3(d) of the Ethics Act regarding their participation. In this regard, it is noted that the entire township is being considered for a designation of an agricultural security area and that two thirds of the township is the subject of the rezoning. Given the size of the proposed security area and rezoning, it would appear that the interests of these two supervisors are remote and hence, they would not be precluded from voting. See Jordan, Opinion 85 -005 and Markham, Opinion No. 85 -013. 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 West Marlborough Township, the supervisor is a public official subject to the provisions of the State Ethics Act. His brother is not a member of his "immediate family" as that term is defined in the Ethics Act. Although there is no prohibition under Section 3(a) of the Ethics Act upon the use of office for a supervisor to vote on a matter relating to his brother, under Section 3(d) of the Ethics Act, he may not use public office to vote. Further, the two supervisors who own Thomas E. Martin, Jr., Esquire May 26, 1988 Page 6 land in the area that comprises two thirds of the township which is subject to a rezoning request would not be precluded from participating or voting as to the rezoning request. Lastly, the propriety of the proposed conduct has only been addressed under the State 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 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, Vincent 't. Dopko, General Counsel