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HomeMy WebLinkAbout88-625 NatoliDear Mr. Natoli: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 12, 1988 Mr. Frank G. Natoli 88 -625 Building Inspector The Borough of Prospect Park Delaware County, PA 19076 Re: Simultaneous Service, Planning Commission, Building Inspector, Public Official This responds to your letter of August 23, 1988, in which you requested advice from the State Ethics Commission. Issue: Whether a planning commissioner is a public official as that term is defined under the Ethics Act and, if so, whether a planning commissioner may simultaneously serve as a building inspector. Facts: In your letter you state that you have been appointed building inspector and you ask whether that would conflict with your staying on planning commission. Although you have not expressly so stated, it would appear that you are then also serving as a member of the planning commission of the Borough of Prospect Park. You attach a photo copy of a portion of the Prospect Park Code, Section 70 -31. Subsection (a) provides that the planning commission may give recommendations as to sketch plans, preliminary plans, final plans, plan approval and resubdivision plans. In subsection (b) it is provided that the planning commission shall act as an advisory body to the appointing authority but may act in the capacity of a building official. Since you have not enclosed photo copies of the code relating to building officials, it is expressly assumed that the planning commission of Prospect Park does not engage in the capacity of a building official. Subsection (c) of the above cited section deals with prerequisites for recommendations and then subsection (d) concerns the powers of the Commission. Mr. Frank G. Natoli September 12, 1988 Page 2 Subsection (d) provides that the planning commission shall have the following powers: review conditional development plans; review the comprehensive plan to determine if further studies or modifications are necessary; review and make recommendations as to amendments; review and make recommendations as to variances; review and make recommendations as to modifications; evaluate activities deemed necessary to the community as set forth in the Deficiency Controls Section; prepare a yearly activity review and lastly advise and make recommendations where so empowered. Subsections (e) through (i) contain various procedural and administrative provisions. Discussion: As to whether a member of a planning commission is a "public official" under the Ethics Act, the foregoing term is defined as follows: Section 2. Definitions. "Public Official." Any elected or appointed official in the Executive, Legislative or Judicial Branch of the State or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense, or to otherwise exercise the power of the State or any political subdivision thereof. "Public Official" shall not include any appointed official who receives no compensation other than reimbursement for actual expenses. 65 P.S. §402. The regulations of the State Ethics Commission provide the following of public official: Section 1.1 Definitions. Public officials - -- An elected or appointed official in the executive, legislative or judicial branch of the government of the Commonwealth or its political subdivisions. The terms does not include a member of an advisory board who has no authority to spend public funds other than reimbursement for personal expenses or to otherwise exercise the power of the State or a political subdivision thereof. Mr. Frank G. Natoli September 12, 1988 Page 3 (i) The following criteria will be used to determine if the exception in this paragraph is applicable: (A) The body will be deemed to have the power to expend public funds if the body may commit funds or may otherwise make payment of monies, enter into contracts, invest funds held in reserves, make loans or grants, borrow money, issue bonds, employ staff, purchase, lease, acquire or sell real or personal property without the consent or approval of the governing body and the effect of the power to expend public funds has a greater than de minimus effect on the interest of a person. (B) The body will be deemed to have the authority to otherwise exercise the power of the State or a political subdivision if one of the following exists: (I) The body makes binding decisions or orders adjudicating substantive issues which are appealable to a body or person other than the governing authority. (II) The body exercises a basic power of government and performs essential governmental functions. (III) The governing authority is bound by statute or ordinance to accept and enforce the rulings of the body. (IV) The body may compel the governing authority to act in accordance with the body's decisions or restrain the governing authority from acting contrary to the body's decisions. (V) The body makes independent decisions which are effective without approval of the governing authority. (VI) The body may adopt, amend and repeal resolutions, rules, regulations, or ordinances. Mr. Frank G. Natoli September 12, 1988 Page 4 (VII) The body has the power of eminent domain, or condemnation. (VIII) The enabling legislation of the body indicates that the body is established for exercising public powers of the Commonwealth or a political subdivision. 51 Pa. Code §1.1. In the instant matter, based upon the submission of Section 70 -31 of the Park Borough Code, it appears that your planning commission merely functions as a body which makes reviews and recommendations but does not have any of the powers and functions enumerated in Section 1.1 of the Regulations of the State Ethics Commission, supra. Thus, based upon the sole submission of Section 70 -31 of the Park Borough Code, it would appear that you, as a member of that planning commission, would not be a "public official" as that term is defined in the Ethics Act. Under the foregoing situation, the Ethics Act would not restrict you as a planning commissioner from simultaneously serving as the building inspector. Section 3(b) of the Ethics Act provides: (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby. 65 P.S. §403(b). Under Section 3(b) of the Ethics Act cited above, which applies not only to public officials /employees but all individuals, one must neither offer nor accept anything of value on the understanding or with the intention that his official judgment would be influenced thereby. It is assumed such a situation does not exist here. Reference to this Section is added not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Mr. Frank G. Natoli September 12, 1988 Page 5 Conclusion: Based upon the above facts and circumstances, you as a member of the Park Borough Planning Commission which is merely advisory in nature and only reviews and makes recommendations but does not exercise the power of a political subdivision, would not be a "public official" as that term is defined in Regulation 1.1 of the Ethics Commission. Under the foregoing circumstances, you as a planning commissioner would not be restricted by the Ethics Act from simultaneously serving as a building inspector but you are subject to the provisions of Section 3(b) discussed above. 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, • eol) Vincent J. Dopko, General Counsel