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HomeMy WebLinkAbout88-598 FreedmanMr. Sidney Freedmen 205 South Elmer Avenue Sayre, PA 18840 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 6 19P8 88 -59' Re: Conflict of Interest, Councilmember, Vote on Rezoning, Salability of Councilmember's Property Affected by Rezoning De_ar Mr. Freedman: This responds to you letter of May 26, 1988, in which you requested advice from the State Ethics Commission. I.:a3ue: You ask whether the State Ethics Act presents any zesLrictions or prohibition upon a councilmember from voting "gai ?.st the rezoning and hence relocation of a savings and loan is :•c iation to a residential area when he has attempted to sell his own property to that association and when that property is currently listed for sale with a realtor. Facts: You state that you are a member of the Borough Council of Sayre and that approximately six to eight months ago you were con by a Mr. Joseph Conroy who is the president of the Star Savings and Loan Company regarding the possible purchase of your property, the Sayre Theatre, as a site for a new Star Savings Office. After stating that you submitted a proposal to Star Savings which was rejected as too high, you advise that Star Savings indicated that they would entertain a lower asking price, but did not respond when you submitted a second proposal. Thereafter you state you listed the :property with a local real estate office which has made a proposal to Star to which there has been no reply. You then state that in the interim Star Savings negotiated with a local hospital authority for the purchase of a parcel in a residential area. After noting that there is heavy opposition from the people living in that neighborhood, you then express a concern regarding your voting on the rezoning of the area which would determine whether Star Mr. Sidney F: ^eedman July 6, 1982 Page 2 could relocate. You then state that you would like to vote on the matter in light of the feelings of the people in the neighborhood. However, you state that you would vote against the project and are concerned that you might be accused of a conflict based on an idea that if the rezoning did not go through, that might force Star Savings to contact you again to sell the Sayre Theatre to them. You state that at the last public meeting, Mr. Conroy was in the audience and that you asked him publicly if negotiations were pending regarding the purchase of the Sayre Theatre to which he responded that there was nothing pending. You conclude by requesting advice as to whether you can vote on this matter and reiterate that you are not against Star Savings because of some hope that you may be able to sell your property to them but rather because you are against Star Savings locating in a residential area. Discussion: As a councilmember for Sayre 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 e 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 Mr. Sidiev Freedman July 6, 198.E 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 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 or a conflict with the public trust. A public official or employee, pursuant to this provision, is to ensure that his 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. Applying the facts of this case to the provisions of Section 3(a) and (d) of the Ethics Act quoted above, you should not vote on the matter of the rezoning of this property to avoid a conflict or the appearance of a conflict of interest. The Commission has determined that it is inappropriate for a public official to vote on a matter wherein he has a personal interest even though his interest would be indirect in nature. See Welz, Mr. Sidney Freedman July u,, 1988 Page 4 Opinion, 86 -001. The Commission has also determined that a negative vote in certain instances (voting against a competitor) a use of office which may transgress Section 3(a) of the thics Act. See Pepper, Opinion 87 -008. Although you express your desire to vote on the rezoning in light of the opposition by . t�a.e neighborhood, you also have a private or personal interest this matter in light of the fact that you had prior negotiation to sell your property, the Sayre Theatre, to the Star Savings any.' you now have that property listed with a realtor. If you were to vote against the rezoning, it can be argued that the result of your action would enhance your prospects of enducing the Stas: &.vings to renegotiate to purchase your property the Sayre°, Theatre. In this regard it is noted that you have your property listed with a realtor and hence the property is currently available for sale and will continue to be available for sale during the period of the listing contract. In light of the fact that your vote could impact upon the salability of your property to the Star Savings, you should not vote on the rezoning becausF of the conflict of interest under 3(a) of the Ethics Act and thk appearance of a conflict of interest under 3(d) of the Ethic; Act. See Golla, Opinion 88 -004. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: As a councilmember for Sayre, you are a public official subject to the provisions of the State Ethics Act. Under the facts and circumstances outlined above, you may not under Sections 3(a) and (d) of the Ethics Act vote on the rezoning of an area of property wherein the Star Savings and Load Company is seeking to relocate when you have had negotiations to sell your property, which is currently listed for sale with a realtor, to Star Savings. 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. This letter is a public record and will be made available as such. Mr. Sidney Freedman July 6, 1988 Page 5 Finally, if you disagree with this Advice or if you have an - reason to challenge same, you may request that tin 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 §2.12. Sincerely, 04) Vincent J. Dopko, General Counsel