HomeMy WebLinkAbout93-513 BriertonDear Mr. Brierton:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG. PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
February 19, 1993
Robert S. Brierton, Esquire 93 -513
132 Park Place, Suite 221
Johnstown, PA 15901
Re: Conflict, Public Official /Employee, Solicitor, Borough
Planning Commission, Attorney, Private Clients, Variance.
This responds to your letter of December 22, 1992, 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 solicitor for a
borough planning commission with regard to representing private
clients to oppose a variance before the zoning hearing board and
before the court of common pleas in the event of an appeal.
Facts: Having served for several years as the Solicitor for the
Westmont Borough Planning Commission, you seek an advi from the
State Ethics Commission. The Westmont Borough Planning Commission
( "Planning Commission") is an advisory body appointed by the
Westmont Borough Council. You were appointed to your position as
the Solicitor of the Planning Commission by Westmont Borough
Council. You serve at the pleasure of Westmont Borough Council and
are paid by Borough Council. Your work as Solicitor for the
Planning Commission requires an average of less than two hours each
month.
Westmont Borough Council has its own Solicitor, Thomas M.
Kalinyak, and the Zoning Hearing Board has a separate Solicitor, E.
R. Walker. Neither Mr. Kalinyak nor Mr. Walker practice law as
part of your firm, but rather they maintain their separate
practices.
You have been retained by a number of individuals who desire
to oppose a variance which may soon be requested by the Greater
Johnstown Water Authority to a zoning ordinance passed by Westmont
Borough Council in 1981. Decision on that variance must be made by
the Westmont Borough Zoning Hearing Board. The Zoning Hearing
Board's decision either refusing or granting the variance can be
appealed to the Court of Common Pleas of Cambria County by the
Robert S. Brierton, Esquire
February 19, 1993
Page 2
Greater Johnstown Water Authority or your clients respectively. In
the event an appeal is made by your clients to the Court of Common
Pleas as a result of a granting of the variance, Westmont Borough
Council has the right to enter an appearance by its own Solicitor
in opposition to such appeal.
You request an advisory as to whether your representation of
private clients before the Zoning Hearing Board or your
representation of the same clients in an appeal to the Court of
Common Pleas of Cambria County relative to the granting of a
variance by the Zoning Hearing Board would constitute a conflict of
interest under Section 3(a) of the Ethics Law or ,contravene any
other provision of the Ethics Law. You proffer your belief that no
conflict of interest or any other violation would be created by
your representation in such forums. Further, you: state your
present intention to refrain from taking any active ipart in the
representation of the above described private clients in any
referral of the matter to the Westmont Planning Commission for its
recommendation as provided by Section 225 -73D of the Westmont
Borough Zoning Ordinance. You state that in any such referral, you
shall also not represent the Westmont Planning Commission as its
Solicitor or even attend any meeting of the Planning Commission
when such referral is placed on the agenda for discussion, comment
or action.
Based upon all of the above, you request an advisory.
Discussion: As Solicitor for the Westmont Borough Planning
Commission ("Planning Commission"), you are a publiciemployee 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
Robert S. Brierton, Esquire
February 19, 1993
Page 3
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.
"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 anything 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
been 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
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
Robert S. Brierton, Esquire
February 19, 1993
Page 4
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 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 applying the above provisions of the Ethics Law to the
circumstances which you have submitted, pursuant to Section 3(a) of
the Ethics Law, 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 official /public
employee himself, any member of his immediate family, or a business
with which he or a member of his immediate family is associated.
Your proposed representation of private clients before the
Westmont Borough Zoning Hearing Board and /or before the Court of
Common Pleas of Cambria County would not contravene Section 3(a) of
the Ethics Law because you would be acting in a private capacity as
an attorney, rather than using the authority of your public
position. Of course, it is assumed, and this Advice is conditioned
upon the assumption, that you would not be using any confidential
information which you would have received in your position as
Solicitor for the Planning Commission.
However, should this matter come before the Planning
Commission, you would have a conflict of interest under Section
3(a) in acting in your public capacity as Solicitor for the
Planning Commission on the matters involving your private clients.
See, Miller, Opinion 89 -024; Kannebecker, Opinion 92 -010. In each
instance of a conflict of interest, you would be required to
Robert S. Brierton, Esquire
February 19, 1993
Page 5
abstain from any participation as Solicitor, and to fully satisfy
the disclosure requirements of Section 3(j) as set forth above.
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 Westmont Borough Ordinances, the
Borough Code or the Rules of Professional Conduct.
Conclusion: As Solicitor for the Westmont Borough Planning
Commission ( "Planning Commission "), you are a public employee
subject to the provisions of the Ethics Law. Subject to the
conditions, restrictions, and qualifications noted above, your
proposed conduct of representing private clients as private legal
counsel before the Westmont Borough Zoning Hearing Board and /or the
Court of Common Pleas of Cambria County would not implicate the
Ethics Law. However, in the event that a private client would have
a matter pending before the Planning Commission, then you would
have a conflict of interest under Section 3(a) of the Ethics Law as
to such matters, and would be required to abstain from
participation and to fully satisfy the disclosure requirements of
Section 3(j) of the Ethics Law as set forth above. 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.
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.
ncerely,
Vincent -! Dopko
Chief Counsel