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