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HomeMy WebLinkAbout90-606 ConfidentialSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 11, 1990 90 -606 Re: Conflict, Public Official /Employee, County, Solicitor, Township, Home Rule Charter, Township Councilman. This responds to your letter of October 16, 1990, in which you requested confidential advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a councilman in a home rule township from voting on a development application involving realty held by a developer on a long term lease agreement with a county which employs the township councilman as a solicitor. Facts: You have been retained as the solicitor for the County to provide legal services to the County Department of Human Resources, Office of Mental Retardation. Your employment by the County is specifically limited to representation of the Office of Mental Retardation only. In addition, you are an elected township councilman in a home rule township which forms a part of the County and in which a county park is located. A private developer has entered into a long term lease agreement with the county relative to a portion of a county park which is also located within township boundaries. The developer is desirous of developing the property which is subject to the township zoning; the developer must apply to the township for approval of the proposed development. There is a provision in the lease agreement which makes the agreement conditional upon the developer's receiving approval of his application for development before the township. As solicitor for the Office of Mental Retardation for the county, your duties do not involve any aspect of the transaction involving the proposed development. You conclude by requesting advice as to rather your employment as the county solicitor for the Office of Mental Retardation would preclude your consideration or voting on the development application as an elected councilmember in the township. Discussion: As councilmember for home rule charter Township, you are a public official as that term is defined under the Page 2 Ethics Law, and hence you are subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. 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. "Conflict" or "conflict of interest" 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 or 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. "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 has a financial interest. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public Page 3 official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. In applying the provisions of Section 3(a) of the Ethics Act quoted above to the instant matter, it does not appear that you would have a conflict as a township councilman in voting on the application of the developer assuming that the developer is not a member of your immediate family and assuming that the developer is not a business with which you are associated as that term is defined under the Ethics Act. In addition, it is expressly assumed that the developer or his business is /was not a private client of your law firm or you individually. In addition, you have factually stated that in your function as a county solicitor for the Office of Mental Retardation, you have had no involvement with the transaction in question, that is, the long term lease agreement between the county and the private developer. Based upon the above facts and assumptions, you as a councilmember in a home rule charter Township would not be precluded from voting on the application of the private developer. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the respective municipal code or Rules of Professional Conduct. Conclusion: A councilmember for a home rule charter township, is a public official subject to the provisions of the Ethics Law. Subject to the above qualifications and assumptions, Section 3(a) of the Ethics Act would not preclude a member of council of a home rule charter township from voting on an application by a private developer regarding realty which has been leased from the county which employs the councilmember as a solicitor to exclusively represent the County Department of Human Resources Office of Mental Retardation. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), 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. 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. S cerely, Vincent J. Dopko, Chief Counsel