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HomeMy WebLinkAbout88-619 BatleyMr. Fred J. Batley Commissioner Ward 5 Town House 11279 Center Highway North Huntingdon, PA 15642 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 3, 1988 88 -619 Re: Conflict of Interest, Township Commissioner, Vote on Rezoning, Commissioner's Property Near Proposed Rezoning Dear Mr. Batley: This responds to your letter of June 27, 1988, in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act presents and restrictions or prohibition upon a first class township commissioner as to voting on a rezoning of certain property when the commissioners own property is near the proposed rezoning. Facts: You state that you are a Commissioner in North Huntingdon Township, Westmoreland County which is a first -class township. After stating that you attended a recent First Class Township Commissioner's Convention where you heard a lecture on the Ethics Act, you advise that part of the lecture concerned the subject of voting on rezoning which may affect the value of a public official's property. Specifically, you state that North Huntingdon Township has before it a rezoning request to change the classification of certain residential property to industrial. Additionally, you advise that local realtors have indicated that the proposed rezoning would increase the property values in the area near the proposed rezoning and that your property is in fact in said area. After stating your belief that the value of your property would increase upon the approval of the rezoning request, you request advice as to the matter of your voting on the particular item so as to protect yourself from any violation of the Ethics Act. You seem to request the difference, if any between not voting on the one hand and abstaining on the other, and conclude by requesting an answer preferably prior to a July Mr. Fred J. Batley August 3, 1988 Page 2 13, 1988 meeting. Discussion: As a Commissioner for North Huntingdon Township you are 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 X1.1. 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). Under Section 3(a) quoted above, this Commission has determined that use of office by a public official to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon, Orders No. 128, 129, affirmed McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, A.2d (1983); Yacobet, Order No. 412 -R, affirmed Yacobet v. State Ethics Commission, Pa. Commw. Ct. , 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow, Order 458 -R, affirmed Koslow v. State Ethics Commission, Pa. Commw. Ct. , 540 A.2d 1374 (1988). Likewise, a public official /employee may not use the status or position of public office for his own personal advantage; 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). Mr. Fred J. Batley August 3, 1988 Page 3 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). 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 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 the instant matter, you have stated that your property is located near the proposed area of rezoning and that it appears, based upon testimony of local realtors, that the rezoning would affect the value of your property. The State Ethics Commission has determined that a public official may not participate or vote in a matter wherein he has a financial interest even though that interest may be considered as indirect in nature. See Wells, Opinion 86 -001. It is only in a situation where the interest of the public official is considered as remote that he would not be precluded from voting or participating. For example, in Markham, Opinion 85 -013, the Commission opined that a public official could vote upon a tax matter in the political sub - division since his voting on that matter would not affect his property any more or less than any other property in the political sub - division. However, in this case your property is near the area of proposed rezoning and it does appear that your property would be affected more so than any other property in the township. Under these facts and circumstances, under Sections 3(a) and 3(d) of the Ethics Act, you should not vote or participate regarding the rezoning of this property. You should note of public record that you are abstaining, which means that you would neither participate nor vote, and that you would further set forth the reason for your abstention (that you have property near the proposed rezoning). Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other Mr. Fred J. Batley August 3, 1988 Page 4 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. Specifically not addressed in this advice is the applicability of the First Class Township Code. Conclusion: As a Commissioner for North Huntingdon Township, you area public official subject to the provisions of the State Ethics Act. Under Sections 3(a) and 3(d) of the Ethics Act you may not participate or vote in a matter of a proposed rezoning when your property is located near the area of the proposed rezoning. You must note your abstention of public record together with the reason for 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. This letter is a public record and will be made available as such. 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 formal 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, Vincent . Dopko, General Counsel