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HomeMy WebLinkAbout92-660John L. McLaughlin, Esquire Marks & Wagner 12 West Market Street P.O. Box 179 Danville, PA 17821 -0179 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 29, 1992 92 Re: Simultaneous Service, County Planning Commission Member and County Zoning Officer. Dear Mr. McLaughlin: This responds to your letters of November 18, 1992, and December 18, 1992, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon a County Planning Commission Member from also serving or being employed as the County Zoning Officer. Facts: As Solicitor for the Montour County Planning Commission in Danville, Pennsylvania, you seek an advisory from the State Ethics Commission on behalf of Mr. George Dietz, one of the Board Members of the Planning Commission. Montour County has enacted a Subdivision and Land Development Ordinance creating a planning agency and a planning commission pursuant to the Pennsylvania Municipalities Planning Code, 53 P.S. 510101, et seq. The Director and the Members of the Planning Commission are appointed by the Montour County Commissioners. Mr. Dietz simultaneously serves as a Board Member of the Planning Commission and as the Montour County Zoning Officer. Mr. Deitz's duties as Zoning Officer are as set forth in the Pennsylvania Municipalities Planning Code and in a 1968 County Ordinance enacted by the Montour County Commissioners, a photocopy of which has not been supplied. You state that the Montour County Planning and Subdivision Board meets monthly to consider approval of subdivisions and other issues submitted to the Planning Agency. The Montour County John L. McLaughlin, Esquire December 29, 1992 Page 2 Planning Commission makes final decisions on subdivision issues presented by developers to the Board. If a subdivision is approved, it is thereafter filed with the Register and Recorder without further action on behalf of the governing body. You state that there is a concern that a potential conflict exists if Mr. Dietz votes on or is the sponsor of a motion to approve or deny a subdivision when he has had or will have contact with the owner of the subdivision in his capacity as Zoning Officer. As Zoning Officer, Mr. Dietz routinely has contact with the subdividers after subdivision approval and during the process of administering the terms of the Zoning Ordinance. Occasionally, Mr. Dietz has contact with the subdividers before considering the subdivision as a voting member of the Planning Commission. As Zoning Officer, Mr. Dietz is paid a flat monthly salary regardless of the number of permits issued or the work which he undertakes each month. Based upon the all of the above, you request an advisory from the State Ethics Commission. Discussion: As a County Zoning Officer for Montour County, Mr. George Dietz is a "public employee" as that term is defined in the Ethics Law and hence he is subject to the provisions of the Ethics Law. 65 P.S. §402; 51 Pa. Code §1.1. As a Member of the Montour County Planning Commission, Mr. George Dietz is also a "public official" as defined in the Ethics Law, subject to the provisions of the Ethics Law. 65 P.S. §402; 51 Pa. Code §1.1. In this regard, it is noted that members of planning commissions which are purely advisory and which do not spend public funds other than reimbursing personal expenses are excluded from the definition of "public official." However, the Montour County Planning Commission makes final decisions on subdivisions, without further action by the governing body, and therefore the statutory exclusion would not apply to its Members. 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 under the Ethics Law: Section 2. Definitions. "Conflict or conflict of interest." Use John L. McLaughlin, Esquire December 29, 1992 Page 3 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 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. 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 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 John L. McLaughlin, Esquire December 29, 1992 Page 4 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 publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor. 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 anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /employee would be influenced thereby. The State Ethics Commission would not have the express statutory jurisdiction to interpret the Pennsylvania Municipalities Planning Code, 53 P.S. §10101 et seg. However, the two positions held by Mr. Dietz, as Montour County Zoning Officer and as an appointed Member of the Montour County Planning Commission, do not appear to have been statutorily declared incompatible by the General Assembly. The following provisions of the Code are noted for your information. 53 P.S. §10614 appears on its face to prohibit a zoning officer from holding any elective office in the municipality, but appointive positions are not specifically addressed. 53 P.S. §10205 provides the following with regard to members of planning commissions: S10205. Membership All of the members of the planning commission shall be residents of the municipality. On all planning commissions appointed pursuant to this act, a certain number of the members, designated as citizen members shall not be officers or employees of the municipality. On a commission of three members at least two shall be citizen members. John L. McLaughlin, Esquire December 29, 1992 Page 5 On a commission of four or five members at least three shall be citizen members. On a commission of either six or seven members at least five shall be citizen members, and on commissions of either eight or nine members at least six shall be citizen members. 53 P.S. §10205 (Emphasis added). It is recommended that any concerns as to these provisions be addressed with legal counsel. In applying the above provisions of the Ethics Law to the question of simultaneous service, there does not appear to be any real possibility of a private pecuniary benefit or inherent conflict arising if Mr. Dietz were to simultaneously serve as a public official /employee in both of the aforesaid positions. Basically, the Ethics Law does not state that it is inherently incompatible for a public official /employee to simultaneously serve or be employed as a Member of a County Planning Commission and as a County Zoning Officer. The main prohibition under the Ethics Law and Opinions of the Ethics Commission is that one may not serve the interests of two persons, groups, or entities whose interests may be adverse. Smith Opinion, 89 -010. In the situation outlined above, Mr. Dietz would not be serving entities with interests which are adverse to each other. It is further noted that under the facts which you have submitted, Mr. Dietz is paid a flat monthly salary as a Montour County Zoning Officer, regardless of the number of permits issued or the work undertaken by him each month. Thus, absent any prohibited understandings which would contravene Sections 3(b) and /or 3(c) of the Ethics Law, there would be no private pecuniary benefit resulting to Mr. Dietz merely through exercising the authority of his two positions. Thus, the simultaneous service of Mr. Dietz in the two aforesaid positions does not present an inherent conflict of interest under the Ethics Law. However, if a situation arises where Mr. Dietz or the respective entities he represents develop an adverse interest, then Mr. Dietz must remove himself from that particular matter and fully satisfy the disclosure requirements of Section 3(j) of the Ethics Law as set forth above. If such a situation would arise, additional advice may be sought from the Commission. Lastly, 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 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 County Code, the John L. McLaughlin, Esquire December 29, 1992 Page 6 Pennsylvania Municipalities Planning Code, and /or the Ordinances of Montour County. Conclusion: As a County Zoning Officer for Montour County, Mr. George Dietz is a "public employee" subject to the provisions of the Ethics Law. As a Member of the Montour County Planning Commission, Mr. Dietz is also a "public official" subject to the provisions of the Ethics Law. As a public official /employee, Mr. Dietz may, consistent with Section 3(a) of the Ethics Law, simultaneously serve as a Montour County Zoning Officer and as a Member of the Montour County Planning Commission. Lastly, th0 propriety of the proposed course of 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. 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 S2.12. Very truly yours, Vincent Dopko, Chief Counsel