HomeMy WebLinkAbout93-612 BoydSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
October 15, 1993
Howard D. Boyd, Jr.
897 C Mount Joy Road
Mount Joy, PA 17552 93 -612
Re: Public Employee /Official, Member of Township Planning
Commission, Conflict of Interest, Purchase of Sub - Division
Subject to Review by Planning Commission.
Dear Mr. Boyd:
This responds to your letter of September 27, 1993, in which
you requested advice from the State Ethics Commission.
Issue: Whether a Member of a Township Planning Commission is to be
considered a "public official" under the State Ethics Law and
hence, subject to the provisions of that law.
Facts: You are a Member of the Township Planning Commission for
West Donegal Township, Lancaster County (Planning Commission). You
were appointed by the Township Supervisors. The Planning
Commission reviews plans for subdivisions. The Planning Commission
makes recommendations such as changes and additions regarding these
subdivisions.
On September 30, 1993, the State Ethics Commission wrote to
you requesting clarification as to the exact nature and function of
the Planning Commission. In response, on October 7, 1993, the
Solicitor for West Donegal Township forwarded correspondence to
this Commission regarding the Planning Commission. The Planning
Commission was created pursuant to the Pennsylvania Municipalities
Planning Code. The Planning Commission has the power to provide
advice. The Planning Commission has no power or authority to
expend public funds or perform any function which is not solely
advisory in nature. The approval and denial of subdivisions and
land development within West Donegal Township is performed by the
Lancaster County Planning Commission under the Lancaster County
Subdivision and Land Development Ordinance. The Planning
Commission reviews plans and provides advice to the Township Board
Boyd, 93 -612
October 15, 1993
Page 2
of Supervisors and the Lancaster County. Planning Commission
regarding subdivisions and land development.
After one such subdivision plan was reviewed by the Planning
Commission, you were contacted regarding possibly purchasing that
subdivision. Based upon the above you request an advisory from the
State Ethics Commission as to whether a conflict of interest exists
in connection with your proposed purchase of the subdivision.
Discussion: It is initially noted that pursuant to Sections 7(10)
and 7(11) of the Ethics Law, 65 P.S. SS407(10), (11), advisories
are issued to the requestor based upon the facts which the
requestor has submitted. In issuing the advisory based upon the
facts which the requestor has submitted, the Commission does not
engage in an independent investigation of the facts, nor does it
speculate as to facts which have not been submitted. It is the
burden of the requestor to truthfully disclose all of the materials
facts relevant to the inquiry. 65 P.S. SS407(10), (11). An
advisory only affords a defense to the extent the requestor has
truthfully disclosed all of the material facts.
It is further noted that 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.
The primary question to be answered is whether, as a Member of
the Planning Commission, you are to be considered a "public
official" as that term is defined in the State Ethics Law.
65 P.S. 5402.
Section 2. Definitions.
"Public Official." Any person elected by
the public or elected or appointed by a
governmental body, or an appointed official in
the Executive, Legislative or Judicial Branch
of the State or any political subdivision
thereof, provided that it shall not include
members of advisory boards that have no
authority to expend public funds other than
reimbursement for personal expense, or to
otherwise exercise the power of the State or
any political subdivision thereof.
Boyd, 93 -612
October 15, 1993
Page 3
It is necessary to analyze the duties, functions and
responsibilities of the Planning Commission in order to determine
whether you are covered under the definition of "public official ".
The duties, functions and responsibilities of the Planning
Commission are set forth above. Specifically, the Planning
Commission was created pursuant to the Pennsylvania Municipalities
Planning Code. The Planning Commission has power to provide advice
only. The Planning Commission has no power or authority to expend
public funds or perform any function which is not advisory.
Based upon the definition of "public official" and in light of
the limited functions of the Planning Commission, it must be
concluded that you are not to be considered a "public official" as
that term is defined in the State Ethics Law.
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 any thing 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 sections of the law not to imply that there has been or
will be any transgression thereof but to provide a complete
response to your inquiry by noting that even though you are not
considered a "public official" under the Ethics Law, Sections 3(b)
and 3(c) apply to everyone.
The following penalties set forth in the Ethics Law apply as
to any violation of Sections 3(b) and 3( /:
Section 9. Penalties
(a) Any person who violates the
provisions of section 3(a), (b) and (c) is
guilty of a felony and shall be fined not more
than $10,000 or imprisoned for not more than
five years, or be both fined and imprisoned.
* * *
(c) Any person who obtains financial gain
from violating any provision of this act, in
addition to any other penalty provided by law,
shall pay a sum of money equal to three times
the amount of the financial gain resulting
from such violation into the State Treasury or
the treasury of the political subdivision.
Treble damages shall not be assessed against a
person who acted in good faith reliance on the
Boyd, 93 -612
October 15, 1993
Page 4
65 P.S. §S409(a), (c).
Therefore, the Ethics Law would not restrict or prohibit you
from engaging in the proposed activity, that is, the purchasing of
the subdivision which you as a Member of the Planning Commission
reviewed, conditioned upon the assumption that neither Section 3(b)
nor Section 3(c) has been or would be transgressed.
Lastly, 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.
Conclusion: As a Member of the West Donegal Township Planning
Commission, you are not to be considered a public official as
defined in the State Ethics Law. You would not be subject to the
State Ethics Law except Sections 3(b) and 3(c), which apply to
everyone. Accordingly, the proposed activity would not be
prohibited or restricted by the Ethics Law. 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-dommitted the acts complained of in reliance
on the Advice given.
such.
advice of legal counsel.
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 writincr and must be received at
the Commission within 15 days of the date of this Advice pursuant
to 51 Pa. Code S13.2(h).
Vincent J. Dopko
Chief Counsel