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HomeMy WebLinkAbout88-666 BiancoDavid F. Bianco, 707 Main Street Forest City, PA Re: Conflict of as Planning Dear Mr. Bianco: Esquire 18421 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA11�7108- 11470 TELEA VICE OF COUNSEL December 12, 1983 Section 3(a ) of the ;ethics Act provides: 88 -666 Interest, Zoning Hearing Board Officer, Spouse Commission Member This responds to your letter of November 10, 1988 in which you requested advice from the State Ethics Commission. iss Whether the State Ethics Act presents any restrictions or p.ohibition upon a zoning hearing board officer as to his spouse becoming a member of the planning commission in the same township. Facts: You state that you are the solicitor for Herrick Township, Susquehanna County which is a second class township which has both the zoning hearing board and the planning coxunission. On behalf of the member of the zoning hearing boa._e you ask whether t'_'at individual may serve on said board the same: time his wife would become a member of the tcwnsy:ip planning commission. Discussion: As a zoning hearing board member, the individual wog » be a "public official" as that tern is defined under the Ethics Act. 65 P.S. §402; 51 Pa. Code §1.1. As such, his ccnduct would be subject to the provisions of the Ethics Act and th" rest .ztions therein wou ?c: be applicable to him. Sect: - n 3. Restricted 1ctivities. (a) No public official or public employee sha ?. us-a his public office or any confidential information .- eceived through his holding public office to obtain financial David F. Bianco, Esquire December 12, 1988 Page 2 gain other than compensation provided by law fo:- 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): 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 535 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to adva -ice 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. Under Section 3(a) of the Ethics Act quoted above, the Commission has determined that a public official may not serve the interest of two persons, groups or entities whose interest may be adverse. See Alfano, Opinion 80 -007. However, the Ethics Act does not prohibit and there does not appear to be any real . possibility of a financial gain or inherent conflict if a husband and wife were to serve as zoning hearing board officer and planning commissioner. In this regard, the Ethics Act does not state that it is inherently incompatibility for a husband acid wife to serve in two different positions in the same municipality. The Ethics Act would restrict the use of office by one public official to advance the employment opportunity of his spouse. However, in the instant matter, it is noted that the two individuals would be on two different governmental bodies within the township and it is assumed that there has been no use of office by the zoning hearing board officer to advance the employment opportunity of his wife or conversely to eliminate any possible competitors for the position on the planning commission. Pepper, Opinion 87 -008. 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 David F. Bianco, Esquire December 12, 1988 Page 3 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. Therefore, subject to the above qualifications, the Ethics Act would not prohibit an individual from serving on a township zoning hearing board if his spouse were to serve as a member of the planning commission in the same township. 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: As a zoning hearing board for a township tha individual is a public official subject to the provisions of the State Ethics Act. Subject to the limitations and qualifications as noted above, Section 3(a) of the Ethics Act would not prohibit an individual from serving as a zoning hearing board officer while his wife would serve as a member of the planning commission in the same township. 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 .ivil or criminal proceeding, providing the requestor has discloses: truthfully all the material facts and committed the ac..s complained of in reliance on the Advice given. David F. Bianco, Esquire December 12, 1988 Page 4 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 r Dopko, General Counsel