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HomeMy WebLinkAbout88-621 MustoPatrick J. Musto, D.D.S. 409 North Keystone Avenue Sayre, PA 18840 Dear Musto: 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 12, 1988 88 -621 Re: Conflict of Interest; Council Member; Voting on Rezoning of Area Which Includes Council Member's Private Office This responds to your letter of July 13, 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 your voting on a rezoning request when you are the half owner of a dental office in the area of the rezoning request. Facts: After advising that a matter will shortly come up before your Borough Council for a vote, you ask advice as to the propriety of your voting on a rezoning request which has been submitted by a group of developers with whom you state you are not connected in any way. You note that the zoning request involves a three block area of the Borough and that the request seeks a change in zoning from a residential to residential /professional office. After stating that you are half owner of a dental office in that area, you advise that you had nothing to do with the proposed ordinance change although you indicate your support for it on the basis that it would allow development in an area that has remained vacant for 20 years. You state that if the proposed zoning change is approved, the dental office would change from a nonconforming existing use to a permitted use. After stating that your office location is purely coincidental in this matter, you advise that you have no plans to enlarge or change the use of the building or in any way take advantage of the change in zoning. You conclude by requesting P J. Musto, D.D. August. 12, 1988 Page 2 advice as to whether you should vote or abstain on the proposed zoning change. Discussion: As a member of Borough Council, you are a public official as that term is defined under the Ethics Act. 65 P.S. §402; 51 Pa. Code §1.1; Rider, Order 490 -R. As such, your conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to you. 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, the State Ethics 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, 466 A.2d 283 (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 ')t addressed by the commission pursuant to paragraph (9) of Section 7. 65 P.S. 403(d). Patrick J. Musto, D.D.S. August 12, 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. §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 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 85 -010. On the question of whether a public official may vote on a rezoning, taxation or other matter which may impact upon his own property within the political sub - division, a public official generally may not vote or participate if his action will have an impact or affect the value upon his property. Jordan, Opinion 86 -005. If the action of the public official would not affect the value of his property any more or less than any other individual in the political sub - division, the public official would not be precluded from voting or participating. Markam, Opinion 85 -013. In the instant matter, it is noted that the rezoning is limited to a three block area which contains your dental office building. Under these circumstances, it appears that your action would have an impact upon the value of this property because it is within the area of the zoning request. Further, since you are the owner of the property, you would have a personal interest even though you have stated that you believe that the area should be developed because it has remained vacant for twenty years. Under these facts and circumstances you should not vote or participate under Sections 3(a) and (d) of the Ethics Act. Further, you should note your abstention of public record together with the reasons for your abstention. 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 rLt involve an interpretation of the Ethics Act. Patrick J. Musto, D.D.S. August 12, 1988 Page 4 Conclusion: As a member of Borough Council you are a public official subject to the provisions of the State Ethics Act. Under Sections 3(a) and 3(d) of the Ethics Act you should not vote or participate regarding the rezoning of a three block area which would include your dental office so as to avoid a conflict and the appearance of a conflict for the reasons as noted above. In addition you should note your abstention of public record together with the reasons for your 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. S' cerely, 0 Vincent . Dopko, General Counsel