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HomeMy WebLinkAbout88-646 McGovernMr. Kevin McGovern 1224 Surrey Road West Chester, PA 19382 Dear Mr. McGovern: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 17, 1988 88 -646 Re: Conflict of Interest, Planning Commission Member, Subdivision and Rezoning Plan, Commission Members Home Adjacent to Property Subject to Subdivision /Rezoning Plan This responds to your letter of September 23, 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 a planning commission member from voting on a subdivision /rezoning plan of parcels of realty when his own property is adjacent to one of the parcels of realty that is subject to the subdivision /rezoning request. Facts: You state that you are a member of Thornbury Township, Chester County Planning Commission which currently has before it a subdivision and rezoning plan relating to three parcels of land that are owned by a developer and are currently zoned as follows: 1 - Lot "A" - 5.4 Ac± Zoned Business; 2 - Lot "B" - 1.5 Ac± Zoned Residential; 3 - Lot "C" - 4.8 Ac± Zoned Residential. After advising that your own property abutts the existing business parcel Lot "A ", you indicate that your solicitor made a suggestion that you contact the Ethics Commission and seek advice as to whether the location of your property would effect your ability to vote on the subdivision plan. Discussion: For purposes of this advice, it will be assumed that as a member of the Thornbury Township, Chester County Planning Commission, you are a public official subject to the provisions of the Ethics Act. Mr. Kevin McGovern November 17, 1988 Page 2 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): Hoax /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, 109 Pa. Commw. Ct. 432, 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. S403(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 Mr. Kevin McGovern November 17, 1988 Page 3 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 your property abutts Lot "A" which is one of the three parcels that is subject to the subdivision rezoning proposal. Under these circumstances, it appears that your action would have an impact upon the value of your property because it is within the area of the subdivision /rezoning request. Further, since you are the owner of the property you would have a personal interest in light of the location of your property. Under these facts and circumstances you should not vote or participate under Sections 3(a) or 3(d) of the Ethics Act. Further you should note our 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 not involve an interpretation of the Ethics Act. Conclusion: Assuming that you, as a member of the Thornbury Township, Chester County Planning Commission, are a public official as that term is defined under the State Ethics Act, then Sections 3(a) and 3(d) of the Ethics Act would restrict your voting or participating regarding the subdivision /rezoning plan of these three parcels owned by the developer. To avoid a conflict or the appearance of a conflict for the reasons as noted above, you should not participate or vote and note your abstention of public record together with the reasons for your abstentions. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Mr. Kevin McGovern November 17, 1988 Page 4 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 52.12. Sincerely, Vincent Dopko, General Counsel