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Home My WebLink About88-655 MarsilioThomas M. Marsilio, Esquire 200 Northeastern Building Hazleton, PA 18201 Dear Mr. Marsilio: STATE ETHICS COMMISSIU' 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 30, 1988 88 5 Re: Conflict of Interest, Township Supervisor, Super he;: )b...4 of Jaycees, Voting on Rezoning of Property Endors. --_ 7)7 Jaycees This responds to your letter of October 18, 1988, in v you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act presents aLf restrictions or prohibition upon a township supervisor f-om voting on a rezoning application when the supervisor is a me of the Jaycees which has endorsed said zoning application. Facts: You state that on behalf of Supervisor Ransom Young you are requesting an advisory opinion as to whether Mr. Young may vote on a rezoning application by CAN -DO Inc., as to properk=y which is currently zoned general rural, conservation and suburban residential to restricted industry. After advising that ::'r. Young was Vice- President of the Valley Jaycees which is an organization that went on record publicly endorsing the rezoning application of CAN-DO, you state that Mr. Young did not participate in any discussions nor did he vote on such ?Nn endorsement and in fact absented himself from any discussions or votes on the matter. You conclude by requesting advice as '.1 whether Mr. Young has a conflict of interest in voting upon • L1!e above rezoning application. Discussion: As a supervisor in Butler Township, Ransom Young is a public official as that term is defined under the Ethics Act and regulations of the Commission. 65 P.S. §402; 51 Pa. Code Section 1 . 1 . As such, his conduct is subject to the provisions )f the Ethics Ac:. and tao restrictions therein are applicable to him. Thomas M. ?T1rsiiio, Esquire November 30,, 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 amily, or a business with which he is associated. 65 P.S. 5403(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 28? (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). Likewis °v, a public official /employee may not use the status or poiitioai of public office for his own personal advantage; Huff, Opinion 84 -015. TLe term "business with which he is associated" is defined under the Ethics Act as follows: Section 2. Definitions. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or holder of stock. 65 P.S. 5402. Thomas M. Marsilio, Esquire November 30, 1988 Page 3 Since Mr. Young was a Vice - President of the Valley Javice'v, it is clear that the Jaycees was a business with which he is associated as that term is defined under the Ethics Act. It is unclear from your request whether Mr. Young is still assoiAated with the Valley Jaycees. Section 3(b) of the Ethics Act provides: (b) No person shall offer or give to a publ'. official or public employee or candidate office or a member of his immediate family or a business with which he is associated, and no public official or pub.li employee or candidate for public office s:iail 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. In applying the above law and decisions of the Commission to the instant matter, the stated facts do not indicate that Mr. Young or the business with which he was (is) associated, Valley Jaycees, has any financial interests in the rezoning application. Although it is noted that the Valley Jaycees has endorsed the : °ezoning application of CAN -DO, Inc., the facts do not reflect `;hit the Valley Jaycees or Mr. Young would have any connection or interest in CAN-DO Inc., so as to obtain a financial gain vis -a- vis the rezoning application. Additionally, there is no showing that the voting by Mr. Young would have an impact upon the value of any property that he would own which would be any different from any other property in the township. Thus, while the Commission has held that a public official may not vote or participate in an action which will have an impact or affect the value of his propei (Jordan, Opinion 86 -005), the Commission has held that a public official may vote on a matter if the value of his p is not affected any more or less than any other Thomas M. Marstlio, Esquire November "30, 1988 Page 4 individual in the political subdivision (Markham, Opinion 85- 013). Therefore, under Section 3(a) of the Ethics Act, Mr. Young would not be precluded from voting on the rezoning application. of CAN -DO Inc. The foregoing opinion is issued expressly based upon the assumptions that Mr. Young or the business with which he was (is) associated, Valley Jaycees has no financial interests and cannot receive any financial gain from the rezoning and secondly that Mr. Young would not have any property interests which would ;.;e affected by his vote anymore than the property interests of an_r other individual in the township. Lastly, the propriety of the proposed conduct has only been idressed 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: As a township commissioner for Butler Township, Mr. Young is a public official subject to the provisions of the State Ethics Act. Under Sections 3(a) of the Ethics Act, Mr. Young would not be precluded from voting on the rezoning application of CAN -DO Inc., subject to the qualifications and assumptions expressly stated above. Lastly, 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