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HomeMy WebLinkAbout88-656 MarsilioThomas M. Marsilio, Esquire 200 Northeastern Building Hazleton, PA 18201 Dear Mr. Marsilio: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 30, 1988 88 -656 Re: Conflict of Interest, Township Supervisor, Voting 7t Rezoning of Properties Adjacent or Near his Own Propert_ Which is Subject to an Installment Sales Agreement This responds to your letter of October 18, 1988, in whir requested advice from the State Ethics Commission. Issue: . You ask whether the State Ethics Act presents any restrictions or prohibition upon a second class township supervisor in voting on two rezoning applications as to properties which are adjacent and subject to an installment sales agreement or in the vicinity of his own property. Facts: As the solicitor for Butler Township and on behalf of Township Supervisor Shelhammer, you request advice as to whether Mr. Shelhammer may participate or vote as a township supervisor on two rezoning applications of properties which are adjacent or near his own property. After referencing Advice of Counsel No. 88 -566 wherein it was concluded that Mr. Shelhammer could not vote on the rezoning of Mr. Sumner's property which was adjacent to his own, you indicate that Mr. Shelhammer now has entered into an installment sales agreement for his property to a third unrelated party in November of 1987. You then state that the contract provides for a payment of two thirds of the consideration in November of 1987, one sixth in November, 1988 and the final one sixth payment in November, 1989. You inquire as to whether that would modify the opinion issued in Advice No. 88 -566, supra. In addition, you indicate that there is a firm CAN -DO Inc. which is also applying for rezoning on an additional p .ece of rroper;:y that is located approximately 1/2 mile from the S- canner propeWrty that was the subject of the above - referenced .aunsel . You inquire a:: to whether Mr. Shelhammer Thomas M. Marsilio, Esquire November 30, 1988 i aq;e 2 would have a conflict of interest in voting on the rezoning of that property which is currently under a general commercial, rural conservation and suburban residential to a proposed Mestricted industry. Discussion: As a supervisor for Butler Township, Mr. Shelhammer is a public official as that term is defined in 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 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. 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 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 1A: position of public office for his own personal advantage; Huff, Opinion 84 -015. Thomas ?.. Me.rs.ilio, Esquire November 33, 19 z 8 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, wx:ich t public official or employee must observe, a public official 3r employee must neither offer nor accept anything of value on understanding or with the intention that his judgment woul b•� influenced thereby. It is assumed such a situation doer n - _ exist here. This Section is referenced not to indicate that an: such activity has been or will be undertaken but in an effoL tc, No emu. a cor.,pete 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 possibl conflict pursuant to Section 3(d). 65 P.S. §403(d). Fritzinqer, 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. Thomas M. Marsilio, Esquire Novemer 30, 1988 Page 4 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 ha is not entitled. Domalakes, Opinion supra. In applying the above provisions of law and analysis of the Commission to the instant matter, the additional fact that Mr. Shelhammer's property is now under an installment sales agreement would not modify the result in Advice of Counsel No. 88 -566 which is incorporated herein by reference. On the question of whether a public official may vote on a rezoning, taxation or other matter which may impact upon his property within a political subdivision, this Commission has determined that public officials may not vote or participate if his action will have an impact or affect the value of his property. Jordan, Opinion 86 -005. It is only when the action of the public official will not affect the value of his property any more or less than any other individual in the political subdivision would he be allowed to vote or participate. Markham, Opinion 85 -013. Although you indicate that Mr. Shelhammer's property is under an installment sales agreement to a third unrelated party, it cannot be said that Mr, Shelhammer has no interest in this property since the installment sales agreement apparently will not be completed and conveyance made until sometime on or after November, 1989. Additionally, there may have been factors in the negotiation as to the installment sales agreement concerning such matters as future potential, representations as to increased value based upon future conditions, etc. The foregoing is not to suggest that there was some type of understanding between Mr. Shelhammer and the other party to the contract regarding possible efforts 'by Mr. Shelhammer to take official action which would result in the increase of this property. To the contrary, the foregoing is merely illustrative to indicate that Mr. Shelhammer still has some interest in the property and that therefore he should not under Sections 3(a) and 3(d) of the Ethics Act vote on the rezoning application so as to avoid a conflict or the appearance of a conflict. The above legal analysis and citations of the Ethics Commission would be equally applicable as to the rezoning application by the group CAN - DO Inc. Although you state that the property in question is approximately 1/2 mile away from Mr. Shelhammer's property, it would appear, albeit based upon limited information, that the nature of rezoning request to restrict industry and the proximate location vis -a -vis Mr. Shelhammer", property would have an impact upon the .Value of that property,. Conversely, based upon the facts and circumstance • of this case, i can not be stated with certainty that such action wou1`. either have no impact upon his property or that it wou' : . have .1a Thomas M. Marsilio, Esquire November 30, 1988 Page 5 impact no greater or less than any other property in the township. Therefore, Section 3(a) and 3(d) of the Ethics Act would require that Mr. Shelhammer not participate or vote as to the rezoning as to either of these applications; further, he must note his abstention of public record together with the reason for his abstention, Lastly, the propriety of the proposed conduct hc only beep, 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: As a supervisor for Butler Tot—ship Mr. Shelhammer is a public official subject to the prcv.sions of the State Ethics Act. Under Sections 3(a) and 3(d) of the Ethics Act, Mr. Shelhammer should neither participate nor vote on two rezoning applications as to properties which are located adjacent or near hir, own property. Additionally, he must note his abstention of public record together with the reason for his 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 go faith conduct in any other civil o: criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. su ch. This letter is a public record and will be made available as Finally, if you disagree with this Advice or if you haven any reason to challenge same, you may request that the full Commission review this A'vice. A personal appearance before the Commission will be scr luled and a formal Opinion from the Commission will be a ssa° :d. 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