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HomeMy WebLinkAbout93-551 RueDear Mr. Rue: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 14, 1993 93 -551 Matthew L. Rue, AIA 90 Kiltie Drive New Hope, PA 18938 Re: Conflict, Public Official /Employee, Chairman, Zoning Hearing Board, Borough, Private Employment or Business, Architect, Plans, Controversial Residential Facility. This responds to your letter of March 30, 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 member and chairman of a borough zoning hearing board who is also an architect, with regard to appearing to testify as a witness before the zoning hearing board on a controversial project for which he has prepared plans, where he would abstain from the hearing in his capacity as a zoning hearing board member. Facts: As a Member and Chairman of the Zoning Hearing Board of New Hope Borough, Pennsylvania, you request an advisory from the State Ethics Commission. You note that you were appointed to the Zoning Hearing Board by New Hope Borough Council and have served on the Board for the past ten years or more. You state that your duties on the Zoning Hearing Board, along with the four other Members, are to hear appeals on zoning matters in accordance with Article VI of the Municipalities Planning Code (Act 247). You have submitted the following as the relevant facts surrounding your request. As a practicing architect, licensed in Pennsylvania, you have prepared plans for a residential facility to house HIV positive infected persons to be located in New Hope. Your client, Family Service Association of Bucks County, applied for and received a zoning permit and a building permit based on the design shown on the plans. You state that the project is highly controversial, and is not wanted in the proposed location by some of the neighbors. One of the future neighbors has filed an appeal Matthew L. Rue, AIA April 14, 1993 Page 2 with the Zoning Hearing Board stating that, among other things, the permits were improperly issued due to data on the plans which is alleged to be faulty. Given that some of the information on the plans which you prepared is in dispute, you state that you have advised the Borough that you would not participate in the hearing due to what you perceive to be an obvious conflict of interest. You ask whether it would be proper for you to appear to testify as a witness before the Zoning Hearing Board about technical matters shown on the plans. Discussion: As a Member and Chairman of the Zoning Hearing Board for New Hope Borough, 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. "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 Matthew L. Rue, AIA April 14, 1993 Page 3 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 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 Matthew L. Rue, AIA April 14, 1993 Page 4 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. In this case, it is clear that your practice as an architect is a business with which you are associated, as defined in the Ethics Law, and as encompassed within Section 3(a) as set forth above. It is noted that Section 3(a) of the Ethics Law does not prohibit public officials /employees from outside business activities or employment; however, the public official /employee may not use the authority of office for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. A public official /employee must exercise caution so that his private business activities do not conflict with his public duties.. Crisci, Opinion 89 -013. For example, a public official /employee could not perform private business using governmental facilities or personnel. In particular, the governmental telephones, postage, staff, equipment, research materials, personnel or any other property could not be used as a means, in whole or part, to carry out private business activities. In addition, the public official /employee could not during government working hours, solicit or promote such business activity. Pancoe, supra. Similarly, Section 3(a) would expressly prohibit the use of confidential information received by holding public office /employment for such a prohibited private pecuniary benefit. In the event that your architectural practice would have a matter pending before your governmental body or if you as part of such official duties would participate, review or pass upon that matter, a conflict would exist. Miller, Opinion 89 -024. In such instances, it will be necessary that you be removed from that Matthew L. Rue, AIA April 14, 1993 Page 5 process. In applying the above principles to the facts which you have submitted, it is clear that as a public official, you would have a conflict of interest in matters pertaining to the residential facility for which you have prepared plans in your capacity as a practicing architect. In each instance of a conflict of interest, you would be required to fully abstain from participation in the capacity as a public official. In this regard it is noted that the term "use of authority of office" encompasses more than the mere voting on an issue before the Board, and encompasses all of the tasks needed to perform the functions of a given position. §11L, Juliante, Order No. 809. You are further advised that in each instance of a conflict of interest,.. you would be required to fully satisfy the disclosure requirements of Section 3(j) of the Ethics Law as set forth above by publicly announcing the nature of the conflict as well as filing a written memorandum regarding same with the person recording the minutes. As for your specific inquiry, the Ethics Law would not preclude you from appearing to testify as a- witness before the Zoning Hearing Board about technical matters shown on the plans which you have prepared for the proposed residential facility, conditioned upon your fully abstaining from such matters in your capacity as Chairman and Member of the Zoning Hearing Board, and conditioned upon your satisfaction of 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. Speci fically not addressed herein is the applicability of the Municipalities Planning Code. Conclusion: As a Member and Chairman of the Zoning Hearing Board for New Hope Borough, Pennsylvania, you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude you from outside employment /business activity subject to the restrictions and qualifications as noted above. In the event that the employer /business has matters pending before your governmental body, then you could not participate in that matter and the disclosure requirements of Section 3(j) of the Ethics Law as outlined above must be satisfied. You would specifically have a conflict of interest as to matters pertaining to the proposed residential facility to house HIV positive infected persons to be located in New Hope, given that you have prepared plans for said facility in your private capacity. You may appear to testify as a witness before the Zoning Hearing Board about technical matters shown on the plans, conditioned upon your fully Matthew L. Rue, AIA April 14, 1993 Page 6 abstaining from such matters in your capacity as a public official, and conditioned upon your -fully satisfying 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 §2.12. Sincerely, Vincent J. Dopko Chief Counsel