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Home My WebLink About88-670 GrahamMr. George R. Graham 88 -670 Hawf ield 1204 Shadyside Road Downington, PA 19335 Re: Conflict of Interest, Township Supervisor, Voting in Intersection Improvement, Property Borders Between Two Roads that form Intersection Dear Mr. Graham: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 28, 1988 This responds to your letter of December 8, 1988, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act imposes any prohibition or restrictions upon a second class township supervisor from voting upon an intersection improvement when his property is located between two roads that form the present intersection. Facts: You state that you are one of the three members of the Board of Supervisors in West Bradford Township, Chester County. After referencing a previous advice, Graham, Advice 88 -508 regarding a matter of your voting on an ordinance which would vacate a road that bordered on your property, you indicate that the same road is now under discussion relative to its possible improvement at the point wherein it intersects with another road. You advise that the current "Y" type intersection has poor alignment and design problems but that the intersection is beyond your property. After noting that the proposal would create a 90 degree angle intersection back from the "Y ", you state that the new intersection would not be on your property but that the point where it changes from the original roadbed to proposed re- alignment is at a corner of your property. In this regard you submit an attached drawing for clarification. After stating that you have been challenged on this matter because the improvement would change the traffic pattern next to your house, you state that you would like to resolve the issue as to whether you ma• vote on the intersection improvement. Additionally, you state Mr. Geoxsge Grah= December 19, 1988 Page 2 that you have been challenged on a possible vote on the theory that the infringement to your property creates a conflict. Aster advising that your property is between the two roads that form the present intersection with your house being closest to the one that would receive the intersection improvement, yc' state your belief that the situation is hazardous and you feel o an elected official you should exercise your responsibility to resolve the safety issue provided that you are not in a conflict. You conclude by requesting advice from the Ethics Commission regarding the above factual scenario. 1. cussion: As a township supervisor for West Bradford Township, ywu are a "public official" as that term is defined under the Ethics Act. 65 P.S. §402; 51 Pa. Code S1.1. As such, you are bubject to the provisions of the Ethics Act and the restrictions therein arc applicable to you. (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): 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 State Ethics Commission,, 109 Pa. Commw. Ct. 432, 531 A.2d 5 (1987). Similarly, Section 3(a) of the Ethics Act would prohib. -a public official /employee from using public office to advancr his own interests; Koslow, Order 458 -R, affirmed Koslow v. Star: Ethics Commission, Pa. Commw. Ct. , 540 A.2d 1374 (191,8 Likewise, a public official /employee may not use t1e s'.atus c pos 4..tion of public office for his o w n personal a d v a.tag F if f , u „) ??ion 84 -015. Section 3(a) of the Ethics Act provides: Section 3. Restricted Activities. Mr. George Graham December 28, 1988 Page 3 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. §403(d). Frit%inger, Opinion 80 -008; DeBenedictis, Opinion 86 -002. The parameters of the type of activity encompassed by this provision are ger rally reviewed in light of the preamble to the Ethics Act - ihich 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 th..;: th° financial interests of the holders of public offic' n.ese: neither a conflict nor the appearance or a conflict with public trust. A public official or employee, pursuant thie provision, is to ensure that their personal financial interests present neither a conflict nor the appearance of a con: "li with the public trust. 65 P.S. 5401. Such a conflict mal• °. ?-:_ere an individual represents one or more adverse inte_:es::s , A .iano, Opinion 80 -007; where an individual serves '.n pcbitio ~s that are incompatible or conflicting; Nelson, Opi :ion 85-109, or where sr ch an official or employee accepts compensati "n : ;o whic'i he is no':. entitled. Domalakes, Opinion supra. In applying the above provisions of law and analysis of the Commission to the instant matter, it has been determined that a public official may not vote on certain matters as zoning, taxation, land improvement or other matters which may impact upo 12,s property within the municipality. See Jordan, Opinion °2- 005. Similarly, it has been held that when the action ^i a public official will rot affect the value of his properly more or less than any other individual in the politira�`. subdivision, than under these circumstances, the public oficial may vote or participate. Markham, Opinion 85 -013. In this case, it cannot be said that your voting on this matter would not have an impact upon your own personal property. Based upon these facts and circumstances, it does appear that your voting could affect the traffic pattern as well as other matters, even possibly affecting the vaivation - f your property. It is clear that due to the location of your property, your action would have a direct impact upon your ownership of your property between these two roads. Therefore, under Sections 3(a) and 3(d) of the Ethics Act you should not vote regarding the intersection improvement, you must note your abstention of public record together with the reasons for your abstention. Mr. George Gra'Y., December 23, 19E7' Page 4 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 rot involve an interpretation of the Ethics Act. Conclusion: As a second class township supervisor in West Bradford Township you are a public official subject to the p °ovisions of the Ethics Act. Under the facts and circumstances outlined above, you may not under Sections 3(a) and 3(d) of the Ethics Act vote on the matter of the intersection improvement when your property is between the two roads that form the present intersection. Additionally, you must note your abstention of public record together with the reason for that 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 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 52.12. ncerely, Vincent . Dopko, General Counsel