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HomeMy WebLinkAbout88-647 TompkinsEdwin W. Tompkins, II, Esquire P.O. Box 31 Emporium, PA 15834 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 18, 1988 88 -647 Re: Conflict of Interest, Prothonotary, Recorder of Deeds and Register of Wills, Formation of Abstract Company, Wife as a Realtor Dear Mr. Tompkins: This responds to your letter of September 27, 1988, in which you request advice from the State Ethics Commission. Issue: Whether the State Ethics Act presents any restrictions or prohibition upon a county prothonotary /recorder of deeds /register of wills from forming an abstract company which will do real estate title /abstract work and secondly what restrictions or prohibition would be imposed upon the abstract company in its dealings with the wife of the public official who would be establishing a real estate business. Facts: You advise that you are solicitor for the County of Cameron and you telephonically advised that you are representing Mr. Reed and asking the above questions on his behalf. You state that Mr. Reed is the duly elected prothonotary and serves as the recorder of deeds and register of wills of Cameron County and that he is desirous of forming an abstract company which would perform real estate title work and abstracts for attorneys, private individuals and others in conjunction with real estate transaction survey work and litigation. You then note that Mr. Reed is not a licensed real estate salesman or broker but he has had many years of experience relative to searching and preparing abstracts. You then state that Mr. Reed's wife, Lori J. Reed, is in the process of securing a real estate license and contemplates setting up a real estate business with her daughter -in -law when she obtains said license. After noting that your son practices law with your daughter -in -law in Emporium, you state that he has contacted the Pennsylvania Bar Association regarding the ethical Edwin W. Tompkins, I1, Esquire November 18, 1988 Page 2 considerations of his wife being involved in the real estate business and also the ethical considerations dealing with the law firm of the abstract company. You conclude by requesting advice as to what restrictions would be imposed upon Mr. Reed in operating the abstract company and further what restrictions would be applicable regarding the abstract company dealing with the real estate business which his wife contemplates establishing. Discussion: As Prothonotary, Recorder of Deeds and Register of Wills of Cameron County, Mr. Reed is a "public official" as that term is defined under the Ethics Act. 65 P.S. §402; 51 Pa. Code §1.1. As such, his conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to him. 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. S403(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, 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. Edwin W. Tompkins, II, Esquire November 18, 1988 Page 3 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 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 a public official or employee must observe, a public official or employee must neither offer nor accept anything of value on the understanding or with the intention that his judgment would be influenced thereby. It is assumed such a situation does not exist here. This Section is referenced 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. 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 possib e conflict pursuant to Section 3(d). 65 P.S. §403(d). Fritzinge Opinion 80 -008; DeBenedictis, Opinion 86 -002. The parameters �'f the type of activity encompassed by this provision are generalh.y 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. S401. Such a conflict may exist where an individual represents one or more adverse interests. Alfano, Opinion 80 -007; where an individual serves in positions Edwin W. Tompkins, II, Esquire November 18, 1988 Page 4 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 applying the above provisions of the Ethics Act to the specific questions which you have posed, Section 3(a) of the Ethics Act would not per se preclude Mr. Reed from establishing an abstract company which would perform real estate title and abstract work. The Ethics Act does not per se preclude a public official or public employee from obtaining outside employment. Goodman, Opinion 88 -001. However, the public official may not use his public office or confidential information to solicit or obtain business for his private business. For example, Mr. Reed could not use his public office or the status of his public office as a means of obtaining any business. In particular, he could not, while engaged in his private abstract business, advertise that he is also a public official or use his status as a public official to further his private business interests. Further, any contacts or business solicitation could not be done at his public office nor could he use public office, personnel, equipment, or supplies in conducting his abstract business. See Dorrance, Order 456. Thus, although Section 3(a) of the Ethics Act would not preclude Mr. Reed from establishing the outside abstract business, he could not use public office or confidential information as the means in whole or part to obtain, advance or further his outside business interests. Turning to your second inquiry regarding what prohibitions would be imposed upon the abstract company in dealing with the real estate business which would be established by Mr. Reed's wife, the above limitations and restrictions would equally apply to the real estate business of Mr. Reed's wife. This is so because Section 3(a) not only restricts a public official from using public office to obtain a financial gain for himself but also for a member of his immediate family. Mr. Reed's spouse is a member of his immediate family as that term is defined under the Ethics Act. 65 P.S. §402. Therefore, although Section 3(a) of the Ethics Act would not prohibit Mr. Reed's wife from establishing the real estate business, Mr. Reed, for the reasons noted above, may not use public office or confidential information to aid, advance, advertise, or further the business interests of his wife. 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. Edwin W. Tompkins, II, Esquire November 18, 1988 Page 5 Conclusion: David J. Reed as the Prothonotary, Recorder of Deeds and Register of Wills of Cameron County is a public official subject to the provisions of the Ethics Act. Under Sections 3(a) and 3(d) of the Ethics Act, Mr. Reed would not be precluded from establishing an abstract company or his wife would not be precluded from establishing a real estate business; however, Mr. Reed must conform his conduct as noted above so as to insure that he does not use public office or confidential information to obtain a financial gain for his business ox: his wife in the business which she contemplates establishing. 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 tha Commission will be scheduled and a former 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 S2.12. Vincent J. Dopko, General Counsel