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HomeMy WebLinkAbout91-531 DaddonaMr. Joseph S. Daddona Mayor City of Allentown Allentown, PA 18101 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783-1610 ADVICE OF COUNSEL April 24, 1991 91 -531 Re: Conflict, Public Official /Employee, Mayor, Appointing Authority, Zoning Hearing Board, Appearance of Mayor before Zoning Hearing Board. Dear Mayor Daddona: This responds to your letter of March 6, 1991, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a Mayor from appearing before the Zoning Hearing Board in an attempt to influence its decision, where the Mayor is not compensated for such an appearance and represents the public interest as Mayor of the City, but is also the appointing authority for members of the Zoning Hearing Board. Facts: As Mayor of the City of Allentown, you seek the advice of the State Ethics Commission. You are frequently requested by citizens to appear in support of their positions before the Zoning Hearing Board of the City of Allentown. As examples, sometimes your appearance before the Zoning Hearing Board is requested by a neighborhood group opposing a proposed use; by a developer proposing a project providing economic development opportunities to the City; or by the Redevelopment Authority of the City of Allentown proposing a redevelopment project needing zoning approval. You state that in none of these instances would , you be receiving compensation, but rather you would be representing the public interest as Mayor of the City of Allentown. In order to avoid the appearance of putting political pressure on members of the Zoning Hearing Board, you have adopted the position of not personally intervening with the Zoning Board unless it was a City - initiated appeal. However, there are times that you feel a decision by the Board one way or another could have an overall significant impact on the well -being of the City in general. In such cases you are tempted to intervene but do Mr. Joseph S. Daddona Page 2 not out of concern for possibly violating the state law authorizing these boards or State Ethics Codes regulating what an elected official can or cannot do. Since you are also the appointing authority for members of the Zoning Hearing Board, with the advice and consent of City Council, you now seek the opinion of the State Ethics Commission regarding whether or not a Mayor or member of council appearing before the Zoning Board in an attempt to influence the Board's decision would violate the State Ethics Law or the State Law authorizing the Zoning Board. Discussion: As Mayor for the City of Allentown, you are a public official as that term is defined under the 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 Mr. Joseph S. Daddona Page 3 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. "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 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. Turning to your specific inquiry, you . ask whether or not a Mayor or member of council appearing before the Zoning Board in an attempt to influence its decision would violate the Ethics Law or the state law authorizing the Zoning Board. It is initially noted that this advice does not address any such state law authorizing the Zoning Board, or any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law, because such other laws do not involve an interpretation of the Ethics Law. Furthermore, this advice may only . be addressed from your perspective. An inquiry regarding the propriety of conduct of a city councilmember would in this case be a third party request and as such may not be addressed. With regard.to your own prospective conduct as Mayor of the City of Allentown, the required elements for establishing a conflict of interest under Section 3(a) of the Ethics Law include the use by a public official or public employee of the authority of his office or employment, or confidential information received through his holding public office or employment, for the private pecuniary benefit of the public official /employee, or for a member of his immediate family, or for a business with which he or a member of his immediate family is associated. In this case, you have expressly stated that you would not receive any compensation for such an appearance before the zoning Hearing Board and that you would only be representing the public interest as Mayor of the City of Allentown. Although Mr. Joseph S. Daddona Page 4 such an appearance by a City Mayor would clearly transgress Section 3(a) of the Ethics Law if a private pecuniary gain were obtained either for the Mayor himself, a member of his immediate family, or a business with which he or a member of his immediate family is associated, under the facts as you have presented them, an appearance before the Board would not be prohibited. Your appearance before the Zoning Hearing Board would be without compensation and solely to represent the public's interest - not a private interest. Because your request for advice was general, this advice is also necessarily general in nature and is based upon the express assumption that any such appearances by you before the Zoning Hearing Board would not result in any private financial gain for you, an immediate family member, or a business with which you or an immediate family member is associated. In the future, as you consider appearances before the Zoning Hearing Board under specific factual circumstances, you are advised to consider in each such circumstance whether such a prohibited private financial gain would be obtained through your appearance before the Zoning Hearing Board. If specific questions arise, you may, of course, seek further advice from this Commission. Finally, authority for and of itself Board so long and any Board of the Ethics it is noted that although you are the appointing members of the Zoning Hearing Board, that fact in would not prohibit you from appearing before the as there are no improper understandings between you member(s) which would violate Sections 3(b) or 3(c) Law. Conclusion: As Mayor for the City of Allentown, you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude you as Mayor for the City of Allentown from appearing before the Zoning Hearing Board in an attempt to influence the Board's decision where you would not be compensated for such an appearance and would only be representing the public interest as Mayor of the City of Allentown, subject to the restrictions of Sections 3(b) and 3(c). Your appearance before the Zoning Hearing Board would be precluded by Section 3(a) of the Ethics Law in any instances where such an appearance would result in a private financial gain for you or a member of your immediate family, or for a business with which you or a member of your immediate family is associated. You may seek further advice from this Commission on any specific factual situations that may arise. Your request for advice regarding such an appearance by a city councilmember is a third party request and may not be addressed. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. 14r. Joseph S. Daddona Page 5 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. 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 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 S2.12. S • cerely, 04) Vincent J. Dopko, Chief Counsel