HomeMy WebLinkAbout93-562 SynderJohn L. Snyder
2018 Mill Road
Perkasie, PA 18944
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1 610
ADVICE OF COUNSEL
May 11, 1993
93 -562
Re: Conflict, Public Official, Chairman, Zoning Hearing Board,
Immediate Family, Spouse, Business with which Associated, Law
Firm, Legal Representation, Clients, Matters Before Zoning
Hearing Board, Vote, Use of Authority of .Office.
Dear Mr. Snyder:
This responds to your letter of April 19, 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 the chairman of a
township zoning hearing board with regard to matters before the
board where the applicants are represented by the law firm which
employs the chairman's spouse as a secretary.
Facts: You are Chairman of the Zoning Hearing Board of Hilltown
Township, Bucks County. Your wife is a legal secretary for a
senior partner in the insurance litigation department of a Bucks
County law firm.
In 1992, a zoning appeal matter was brought before the Board
in which the applicant was represented by a member of the law firm
where your wife is employed. The matter was withdrawn and the
Board made no decision on the matter. You indicate that another
appeal may be brought before the Board in which this applicant is
also represented by a member of the same law firm.
You state that you discussed the upcoming matter with
Assistant Counsel for this Commission and were told the matter
would most likely create a conflict of interest regarding voting on
the matter but that you could act as procedural chairman as long as
you did not ask any questions and did not confer with other Board
members.
John L. Snyder
May 11, 1993
Page 2
Based on the above, you request an advisory from this
Commission.
Discussion: It is initially noted that to the extent your letter
of inquiry indicates your receipt of telephonic advice, your letter
of inquiry is incorrect. Although the Commission staff provides a
public service by informing callers of various provisions of the
Ethics Law, advisories are not issued by telephone.
Further, your request for advice may only be addressed with
regard to prospective conduct. A reading of Sections 7(10) and
7(11) of the Ethics Law makes it clear that an opinion or advice
may be given only as to prospective (future) conduct. If the
activity in question has already occurred, the Commission may not
issue an opinion or advice but any person may then submit a signed
and sworn complaint which will be investigated by the Commission if
there are allegations of Ethics Law violations by a person who is
subject to the Ethics Law. Your inquiry will now be addressed.
As Chairman of the Zoning Hearing Board of Hilltown Township,
Bucks County, 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
John L. Snyder
May 11, 1993
Page 3
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
a matter that would result in a conflict of
interest shall abstain from voting axid,,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
John L. Snyder
May 11, 1993
Page 4
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 the event that the required abstention results in the
inability of the governmental body to take action because a
majority is unattainable due to the abstention(s) from conflict
under the Ethics Law, then in that event participation is
permissible provided the disclosure requirements noted above are
followed. See, Mlakar, Advice 91- 523 -S.
You are further advised that the use of authority-of office is
more than the mere mechanics of voting and encompasses all of the
tasks needed to perform the functions of a given position. See,
Juliante, Order No. 809. Use of authority of office includes
discussing, conferring with others, lobbying for a particular
result and /or any other use of the authority of office in which the
result would be a private pecuniary benefit to a business with
which a public official or a member of his immediate family is
associated.
In applying the above provisions of the Ethics Law to your
present inquiry, Section 3(a) of the Ethics Law prohibits public
officials from using the authority of public office for the private
pecuniary benefit of the public official himself, a member of his
immediate family, or a business with which he or a member of his
immediate family is associated. Your wife is a member of your
immediate family, as set forth above. The law firm where your wife
is employed is a business with which a member of your immediate
family is associated.
John L. Snyder
May 11, 1993
Page 5
Thus, conflicts of interest would arise where the use of
authority would result-in a private pecuniary benefit to a business
with which a member of your immediate family is associated, in this
case, the law firm where your wife is employed. You would have a
conflict of interest in any matter before the Zoning Hearing Board
where any person is represented by any member of the law firm where
your wife works. This Advice is based on established Commission
precedent as set forth in Miller, Opinion 89 -024, and Kannebecker
Opinion 92 -010. In Miller, it was held that matters which came
before a public official involving his private business or private
clients place that public official in a situation where he is faced
with conflicting interests. In his private capacity, a duty is
owed to his private clients, while in his capacity as a public
official, his primary duty is to act in the best interest of the
governmental body. Kannebecker held that a public official had a
conflict as to individuals who had matters pending before the
township when the public official was an attorney for those
individuals in unrelated matters.
In each instance of a conflict of interest, you would be
required to abstain from any participation of any nature and to
satisfy the disclosure requirements of Section 3(j) as set forth
above.
Further, based on Juliante, supra, you would be prohibited
from any participation in which you would be using the authority of
your office. You would not be prohibited from acting as procedural
chairman, however, as long as such - activity would not rise to the
level of a use of authority of office.
The propriety of the proposed conduct has only been addressed
under the Ethics Law; the applicability 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 the Chairman of the -Zoning Hearing Board of
Hilltown Township, Bucks County, you are a public official subject
to the provisions of the Ethics Law. Under Section 3(a) of the
Ethics Law, you would have a conflict of interest as to matters
before the Zoning Hearing Board where any person is represented by
a member of that law firm that employs your spouse. In each
instance of a conflict of interest, you would be required to
abstain and must satisfy the disclosure requirements of Section
3(j) of the Ethics Law as outlined above. You would not be
prohibited from acting as procedural chairman so long as such does
not constitute a use of authority of office. Lastly, the propriety
of the proposed conduct has only been addressed under the Ethics
Law.
John L. Snyder
Nay 11, 1993
Page 6
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 513.2(h).
cerely,
Vincent . Dopko
Chief Counsel