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HomeMy WebLinkAbout88-620 BiancoDavid F. Bianco, Esquire 717 Main Street Forest City, PA 18421 Dear Bianco: 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 Section 3(a) of the Ethics Act provides: Section 3. Restricted Activities. (a) No public official or public employee 88 -620 Re: Conflict of Interest, President and Vice - President of Council, Purchase of Sub - division, Responsibility for Paving Roads in Sub - division This responds to your letter of June 28, 1988 in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act imposes any prohibition or restrictions upon the President and Vice - President of Council who have purchased a sub- division within the'Borough wherein there is a dispute as to whether the original developer is required to pave the roads in the sub - division. Facts: You state that you are the solicitor for Vandling Borough and that you also individually represent two members of Council, the President and Vice - President, who have purchased a sub - division within the Borough. After stating that there has been a dispute as to whether the original developer is required to pave the roads within the sub - division, you request advice as to whether the President and Vice - President of Council would have a conflict of interest in this situation. Discussion: As President and Vice - President of Council of Vandling Borough, these two individuals are public officials 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, their conduct is subject to the provisions of the Ethics Act. David F. Bianco, Esquire 707 Main Street Page 2 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). 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 David F. Bianco, Esquire 707 Main Street Page 3 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 situation, since the President and Vice - President of Council have purchased this sub - division, it appears that any action they would take in their capacity as President and Vice - President of Council relative to the matter of whether the developer was required to pave the roads in this sub- division could have a financial impact upon these two officials. Further, since they are owners of the sub - division, they have a personal interest in this matter in light of their ownership. The 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. Further, the Commission has opined that a public official may not use public office for his own personal benefit . See Huff, Opinion, supra. -It is only in a situation where the public official has an interest which may be described as remote where the Ethics Act would not preclude his voting or participation. For example, in Markham, Opinion, 85 -013 the Commission determined that a public official could vote on a tax matter since the result of the public official's vote would not affect his property any more than any other property within the political sub - division. In this case, however, the President and Vice- President of Council specifically own this sub - division within the Borough and in this instance their voting on this matter regarding the paving of roads in that subdivision would impact on them above and beyond all of their properties in the Borough. Therefore, under section 3(a) of the Ethics Act, the President and Vice - President of Council should not vote or participate in the matter regarding whether the Borough or the original developer or possibly the owners of this sub - division are required to pave the roads. Additionally, under Section 3(d) of the Ethics Act, if the President and Vice - President of Council were to participate or vote in this matter, there would be an appearance of conflict of interest in light of their ownership of the sub - division for the reasons outlined above. Accordingly, they should not under Section 3(d) of the Act participate or vote in this matter and they should note their abstention of public record together with the reason for their abstention. David F. Bianco, Esquire 707 Main Street Page 4 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. Specifically not_addressed in this advice is the applicability of the Borough Code. Conclusion: The President and Vice - President of Vandling Borough are public officials subject to the restrictions of the Ethics Act. Under Sections 3(a) and 3(d) of the Ethics Act the President and Vice - President of Council, who have purchased a sub - division within the Borough, may not vote or participate on the matter regarding whether the developer or the Borough or some third parties are required to pave roads in that sub - division and they must note their abstention of public record together with the reason for their 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 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 J. Dopko, General Counsel