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HomeMy WebLinkAbout88-602 NewcomerPaul C. Newcomer, O.D. 628 Juniper Street Quakertown, PA 18951 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 7, 1988 88-602 Re: Conflict of Interest, Township Supervisor, Voting on Appointment of Individual who Co -Owns Property with Supervisor Dear Mr. Newcomer: This responds to your letter of June 2, 1988, in which you requested advice from the State Ethics Commission. Issue: Whether the restrictions upon a on the appointment with the supervisor. State Ethics Act presents any prohibition or second class township supervisor from voting of an individual who jointly owns property Facts: You state that you are currently a supervisor in a second class township which has a five member board. You then advise that you would like to nominate or vote for the appointment to a vacancy of an individual who is the co -owner with you of property in the township. You then state that the property consists of a 75 acre tract of pastures, farming fields and woods. After noting that you lease the pasture area for a 1.00 per year and that you receive no income whatsoever from the farmland or woods, you state that the 75 acre tract is under the 515 Agriculrtural Act and that you have no other business association with this individual to whom you are not related. You conclude by requesting advice under the Ethics Act as to whether you may nominate or vote for this individual. Discussion: As a township supervisor, you are a "public official" as that term is defined under the Ethics Act. 65 P.S. §402; 51 Pa. Code §1.1. As such, your conduct must conform to the requirements of the Ethics Act. Paul C. Newcomer, O.L. July 7, 1988 Page 2 The Act does, however, provide as follows: 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). Within the above provision of law, no public official may ;e hic position or any confidential information obtained therein i order to obtain a financial gain for himself or a member of he_s immediate family or a business with which he is associated. TA) Act defines business with which one is associated as follows: 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. Under this provision, the Ethics Commission has determined ':hat the use of office by a public official to obtain a gain or benefit for himself 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 Yacobet v. State Ethics Commission, Pa. Ccrnmw. , 531 A.2d 536 (1987). Under this provision, a public official may not use public office to secure any financial gain fo:: himself or for a business with which he is associated. See Domalakes, Opinion 85 -010. The term business is defined under the Ethics Act as follows: Section 2. Definitions. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, Paul C. Newcomer, O.D. July 7, 1988 Page 3 such. joint stock company, receivership, trust or any legal entity organized for profit. 65 P.S. 5402. In the instant matter, it does not appear that your co- ownership of this 75 acre tract of pasture, farm fields and woods is a business as that term is defined under the Ethics Act. Although you jointly own this property with this other individual, you have stated that you lease the pasture land for only 1.00 a year and receive no income from the farmlands or woods. Under these facts it does not appear that such activity would constitute a business as that term is used under the Act; furthermore, under Section 3(a) of the Ethics Act, since you are only receiving a nominal or token amount of 1.00 per year, there would not be any financial gain and hence Section 3(a) of the Ethics Act would not be implicated in this instance. You have stated that you are not related to this individual and that you have no other business association with him. Since your co- ownership of this land does not appear to be a business and since it does not appear that you are receiving any financial gain from your co- ownership of this land, Section 3(a) of the Ethics Act would not preclude you from voting on the appointment of this individual. 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 in a second class township you are a "public official" subject to the provisions of the State Ethics Act. Your co- ownership of land, which is not a business and for which you only receive a nominal lease of a 1.00 per year, would not preclude you under Section 3(a) of the Ethics Act from nominating or voting for the appointment to the vacancy of the individual who is the co -owner of the land. 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 Paul C. Newcomer, O.D. July 7, 1988 Page 4 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 §2.12. Sincerely, .„,„-Ar),001-dAt) Vincent J. Dopko, General Counsel