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HomeMy WebLinkAbout18-505 ScottPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: Mr. Robert Scott Dear Mr. Scott: STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL February 26, 2018 FACSIMILE: 717-787-0806 WESSITE: www.ethics.pa.gov 18-505 This responds to your letter dated December 19, 2017, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"). Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa. YS. § 1101 et sew., would impose prohibitions or restrictions upon an individual with regard to performing the duties of his public position(s) as a township zoning officer/planning director where the individual's spouse is a newly --elected township supervisor. Pacts: You are the Zoning Officer/Planning Director for Washington Township ownship"), located in Northampton County, Pennsylvania. In November 2017, your wife was elected as a Township Supervisor for a term of office beginning on January 2, 2018. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you with regard to performing the duties of your public position(s) as the Township Zoning Officer/Planning Director. Discussion: It is initiallynoted that pursuant to Sections 1107(10) and 1107(11) of e Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all of the material facts. In your capacity(ies) as the Township Zoning Officer/Planning Director, you are a public official/public employee subject to the provisions of the Ethics Act. Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities eF MF'6Scott, 18-505 ary 26, 2018 Page 2 (a) Conflict of interest. --No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The following terms related to Section 1103(a) are defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. "Immediate family." A parent, spouse, child, brother or sister. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, a public official/public employee is prohibited from using the authority of public office/employment or confidential information received by holding such a public position for the private pecuniary benefit of the public officiallpublic employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. In each instance of a conflict of interest, the public official/public employee would be required to abstain from participation. The abstention requirement would extend to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. In ap I ing the above provisions of the Ethics Act to the instant matter, you are advised as follows. Your wife is a member of your "immediate family" as that term is defined in the Ethics Act. Subject to the statutory exclusions to the definition of "conflict" or "conflict of interest" as set forth in Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102, pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest in your capacity(ies) as the Township Zoning Officer/Planning Director in matters that would financially impact you, a member of your immediate family such as your wife, or a Scott, 18-505 ��uary 26, 2018 Page 3 business with which you or a member of your immediate family is associated. In each instance of a conflict of interest, you would be required to abstain from participation. 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 otther than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the Second Class Township Code. Conclusion; Based upon the submitted facts that: (1) you are the Zoning Officer/Planning Director for Washington Township ("Township"), located in Northampton County, Pennsylvania; and (2) in November 2017, your wife was elected as a Township Supervisor for a term of office beginning on January 2, 2018, you are advised as follows. In your capacity(ies) as the Township Zoning Officer/Planning Director, you are a public o iciallpu lic employee subject to the provisions of the Public Official and Employee Ethics Act ("Ethics Act"), 5 Pa.C.S. § 1101 et seq. Your wife is a member of your "immediate family" as that term is defined in ttie Ethics Act. Subject to the statutory exclusions to the definition of "conflict" or "conflict of interest" as set forth in Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102, pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest in your capacity(ies) as the Township Zoning Officer/Planning Director in matters that would financially impact you, a member of your immediate family such as your wife, or a business with which you or a member of your immediate family is associated. In each instance of a conflict of interest, you would be required to abstain from participation. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, an 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, provided the requester 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writingg and must be actual) received at the Commission within thirty (30) days of the date of this � e ursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717-787-0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. ;Slincely,, Robin M. Hittie Chief Counsel