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HomeMy WebLinkAbout91-607 AldukMr. Frank P. Alduk R.D. #3 Box 322 New Castle, PA 16105 -9017 Dear Mr. Alduk: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 27, 1991 91 -607 Re: Conflict, Public Official /Employee, Zoning Hearing Board Member, Chairman, Immediate Family, Child, Vote, Use of Authority of Office, Zoning, Child's Real Estate in Proximity to Fish Hatchery Cited for Zoning Violation. This responds to your letter of November 4, 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 you as the Neshannock Township Zoning Hearing Board Chairman with regard to a matter before the Board involving a fish hatchery cited as violating the Township zoning ordinance, where your daughter and her family reside in the immediate area and have expressed opposition to the fish hatchery as well as a concern that the fish hatchery may have caused their well to go dry. Facts: As the Chairman for the Neshannock Township Zoning Hearing Board in Lawrence County, Pennsylvania, you seek the advice of the State Ethics Commission with regard to an appeal coming before the Board. The matter involves an enforcement notice under Section 616.1(c)(5) of the Pennsylvania Municipalities Planning Code involving the Township's citation of a fish hatchery as violating the Township zoning ordinance wherein the raising of fish or the operation of a fish hatchery is not a permitted use in an R -2 Residential Rural District. You have submitted a copy of the notice dated September 6, 1991, which notice is incorporated herein by reference. A question has been raised as to whether you have a conflict of interest and should not serve at the hearing. Your daughter and her family reside in the immediate area and have expressed opposition to the fish hatchery, as well as a concern that the Frank P. Alduk December 27, 1991 Page 2 existence of the fish hatchery may have caused their well to go dry last summer so that they had to drill a new well. You state that there is no actual proof that the fish hatchery caused your daughter's well and a couple of others in the same area to go dry, because the area also had a drought this past summer. You further state that the fish hatchery is apparently drawing water from wells on its property in order to supply its fish ponds. You do not reside with your daughter and you do not live in the vicinity of the fish hatchery. The decision for the three - member Zoning Hearing Board is whether the property owner is in violation of the zoning ordinance so as to uphold the notice of violation. Either the property owner or the Township may appeal the Board's decision to the Court of Common Pleas. Based upon all of the above, you request an advisory opinion from this Commission. Discussion: As Chairman for the Neshannock Township Zoning Hearing Board in Lawrence County, Pennsylvania, 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. Prank P. Alduk December 27, 1991 Page 3 "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 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. 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. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities. (j) Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on Frank P. Alduk December 27, 1991 Page 4 a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the . minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest, and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. If a conflict exists, Section 3(j) requires the public official /employee to abstain, and to orally announce his abstention and the reasons for same as well as file a written memorandum to that effect with the person recording the minutes or supervisor. In applying the above provisions of the Ethics Law to the submitted facts, it is initially noted that an Advice is issued based upon the facts which are submitted in the request. In this case, the submitted facts expressly state that there is no proof that the fish hatchery caused your daughter's well and others in the area to go dry because there were also drought conditions at that time. The submitted facts further state that the fish hatchery draws water from wells located on its own property in order to supply it fish ponds. Therefore, based upon the submitted facts, it would appear that you would not have a conflict of interest in participating and voting on the appeal before the Board from the enforcement notice issued to the fish hatchery owner. In order for a Frank P. Alduk December 27, 1991 Page 5 conflict to arise under the Ethics Law, the following three elements must be established: the person whose conduct is in question is a public official /public employee, and he has used the authority of his office or employment or any confidential information he 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. There are certain noted exceptions which are set forth in the definition of "conflict of interest" as set forth above. In this case, it is clear that you are a public official /public employee and that your participation and /or voting in the matter involving the appeal to the Board from the enforcement notice would, constitute a use of the authority of your office. However, the submitted facts do not reveal the requisite element of a private pecuniary benefit to you, a member of your immediate family,- or a business with which you or a member of your -immediate family is associated. Certainly your daughter is within- the definition of "immediate family," regardless of the fact that you do not reside with her. Nevertheless, there are no submitted facts -which would establish a private pecuniary benefit to your daughter. Such a private pecuniary benefit may not be merely assumed to exist. Although the Commission has found a private pecuniary benefit under circumstances where the use of authority of office would clearly increase the value of the real estate in question, such as through a comprehensive sewage plan where the public official and an immediate family member would be affected to a greater extent than all other land owners that would be subject to the plan, Mihalik, Opinion 90 -002, the existence or non- existence of a fish hatchery would not appear to be• comparable to such circumstances. Thus, in this case, the private pecuniary benefit to your daughter may not be assumed merely based upon whether or not the fish hatchery continues to operate or to exist. This Advice is therefore necessarily conditioned upon the assumption that the appeal before the Neshannock Township Zoning Hearing Board from an enforcement notice involving the citation of the fish hatchery for a zoning violation, will have no impact of a financial nature upon your daughter, either as to the adequacy of her wells or in any other way, including but not limited to an increase in property value. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other Frank P. Alduk December 27, 1991 Page 6 statute, code, other than the not involve an not addressed Municipalities such. ordinance, regulation or other code of conduct Ethics Law has not been considered in that they do interpretation of the Ethics Law. Specifically herein is the applicability of the Pennsylvania Planning Code. Conclusion: As Chairman for the Neshannock Township Zoning Hearing.Board in Lawrence County, Pennsylvania, you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not prohibit your participation and /or vote in an appeal before the Board from an enforcement notice under the Pennsylvania Municipalities Planning Code regarding a citation of a fish hatchery for violation. of the Township zoning ordinance. This Advice is expressly conditioned upon the assumption that such use of the authority of your office in this matter will have no impact of a financial nature on your daughter, as to the adequacy of her wells or in any other way, including but not limited to any increase in property value. 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. 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. Vincent W. Dopko Chief Counsel