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HomeMy WebLinkAbout93-548 SalemJames Salem Lower Yoder Township Board of Supervisors 128 J Street Johnstown, PA 15906 Dear Mr. Salem: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 14, 1993 93 -548 Re: Conflict, Public Official /Employee, Chairman, Township Supervisor, Use of Authority of Office or Confidential Information, Immediate Family, Nephew, Business with which Associated, Variance. This responds to your letter of March 22, 1993, 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 chairman of a township board of supervisors with regard to a proposed variance for his nephews. Facts: After referencing a telephone conversation with Commission staff, you request an advisory from the State Ethics Commission with regard to your prospective conduct as Chairman of the Lower Yoder Township Board of Supervisors. You state that in the mid- 1950's, your brother bought and established a business called Cambria Hardware. The store initially was located on Broad Street, Johnstown, and was later relocated to Lower Yoder Township, Johnstown. Within the last five years, your brother transferred the business in its entirety to his two sons, your nephews. You state that last year, your nephews decided to build a new hardware store. As a result of Department of Environmental Resources (DER) requirements referencing Floodwater Management guidelines, your nephews have constructed a retention pond as per their engineer's and DER's engineer's specifications. They were planning to open the hardware store on April 1, 1993, but they were James Salem April 14, 1993 Page 2 informed that their retention pond is inadequate. The solution arrived at by both engineers was for Cambria True Value Hardware to construct a wood retaining wall to separate their new store from an adjoining apartment building at a cost of $38,000. In order to meet their opening date, your nephews are requesting a variance that will issue them an occupancy permit with the provision that the retaining wall be completed, weather permitting, within 60 days. The Township Board of Supervisors consists of three members. Because of prior difficulties with one of the other Supervisors in Lower Yoder Township, you are concerned that, as Chairman of the Board of Supervisors, your vote on this issue will be questioned and labeled as a "conflict of interest. "; You represent and assure this Commission that you have never had .a financial interest in this business. You do not feel that your relationship to the current owners should impede or delay the opening of their new store in which they have invested up to two million dollars as of this date. You state that delays in opening would also financially hurt the already distressed budget and finances of Lower Yoder Township. Based upon all of the above, you request an advisory from the State Ethics Commission as to this matter. Discussion: As Chairman of the Lower Yoder Township Board of Supervisors, 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 James Salem April 14, 1993 Page 3 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. "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 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 James Salem April 14, 1993 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 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. However, in this case, since the term "immediate family" is defined to include a parent, spouse, child, brother or sister and since you and your nephews are not in a familial relationship delineated above, Section 3(a) of the Ethics Law would not restrict your prospective official participation in matters pertaining to the proposed variance for your nephews. However, this Advice is conditioned upon the assumption that neither you, your brother, any other immediate family member, nor any business with which you or a member of your immediate family is associated, as defined in the Ethics Law, would receive a private pecuniary benefit from your James Salem April 14, 1993 Page 5 proposed conduct. See, Baker, Opinion 89 -016; Boyer Advice 91- 511; Luzi, Advice 92 -625. 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 Second Class Township Code. Conclusion: As Chairman of the Lower Yoder Township Board of Supervisors, you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not restrict your future official conduct in matters involving a variance for your nephews. This Advice is conditioned upon the assumption that neither you, your brother, any other immediate family member, nor any business with which you or a member of your immediate family is associated, as defined in the Ethics Law, would receive a private pecuniary benefit from the proposed official conduct. 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 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 §2.12. 5 V incent . Dopko Chief Counsel