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HomeMy WebLinkAbout94-583 YacopecSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 22, 1994 Stephen Yacopec, Jr., Esquire 1706 Fifth Avenue Arnold, PA 15068 94 -583 Re: Conflict, Public Official /Employee, Mayor, Third Class City, Private Consulting Business, Clients, Land Development Projects. Dear Mr. Yacopec: This responds to your letter of April 13, 1994, received June 13, 1994, 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 third class city mayor from voting upon land development projects by individuals or businesses as to which the mayor has provided independent consulting services. Facts: As Solicitor for the City of Lower Burrell and on behalf of the Mayor, an advisory is sought regarding whether the Ethics Law poses any prohibition or restrictions upon a Mayor of a Third Class City who has a private consulting business from voting upon land use projects under the Pennsylvania Municipalities Planning Code (MPC) as to individuals or companies with whom the Mayor is hired or may be hired to perform independent consulting work which is unrelated to the land use projects. The Mayor has an independent consulting business wherein he advises various individuals and companies on the running of • bakeries. In the future, there may be land development projects by some of his clients which would come before the City Council. Under the Third Class City Code, the Mayor is a member of Council and therefore has the right to approve or deny land development projects pursuant to the MPC. None of the Mayor's independent consulting work has anything to do with land use matters which may be presented before Council by his clients. The Mayor is concerned if a situation arises where his participation or vote on a land use Yacopec, Stephen, Jr., 94 -583 June 22, 1994 Page 2 project is owned by a company for whom he currently performs consulting work or for whom he may be hired at some later date to perform such work for a bakery business which may be placed on that property. There is no contract with the Mayor's clients which indicates that he would be hired to perform consulting work at the site. After citing Section 3(a) of the Ethics Law and the definition of business with which associated, you conclude that the Mayor would not be voting on a business with which he is associated under the Act and, in that regard, you cite Smythe, Order 733, Smeal, Order 743, and Shaffer, Order 751, in support of your position. 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 material 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. As Mayor for Lower Burrell City, the individual is a public official as that term is defined under the Ethics Law, and hence he is 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 ok 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 Yacopec, Stephen, Jr., 94 -583 June 22, 1994 Page 3 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. "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 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 Yacopec, Stephen, Jr., 94 -583 June 22, 1994 Page 4 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. Applying the provisions of the Ethics Law to the instant matter, the Lower Burrell City Mayor would have a conflict regarding land use and development projects or other matters submitted by businesses or individuals to whom he provides independent consulting business services. In Miller, Opinion 89- 024, the Commission held that a zoning hearing board officer who worked for a private firm had a conflict regarding any matters presented by that firm or its clients before her governmental body. In addition, in Kannebecker, Opinion 92 -010, the Commission held that a township supervisor who was also an attorney had a conflict as to any matters involving his law clients before the township even though he represented the clients on totally unrelated matters. In Amato, Opinion 89 -002, the Commission held that a township commissioner would have a conflict voting on development plans if he could legitimately and reasonably anticipate that by voting on such plans that the developer would award a contract to a general contractor who would engage subcontractors who in turn would make purchases from a building supply company with which the township commissioner was associated. Therefore, based upon the prior precedent of the full Ethics Commission as noted above, the Dower Burrell Mayor would have a conflict as to his independent consulting business clients, individuals or companies, who had land development projects or other matters before a Borough Council and could not participate on such matters. In addition he would be required to observe the disclosure requirements of Section 3(j) of the Ethics Law noted 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 Yacopec, Stephen, Jr., 94 -583 June 22, 1994 Page 5 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 respective municipal code. Conclusion: As Mayor for Lower Burrell City, the individual is a public official subject to the provisions of the Ethics Law. Under the Ethics Law, the Lower Burrell Mayor would have a conflict as to his independent consulting business clients, individuals or companies, who had land development projects or other matters before a Borough Council and could not participate on such matters. The disclosure requirements of Section 3(j) of the Ethics Law must be satisfied. 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within fifteen (15) days of the date of this Advice pursuant to 51 Pa.Code §13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787 - 0806). Failure to file such an appeal at the Commission within fifteen (15) days may result in the dismissal of the appeal. ncerely, � Vincent . Dopko Chief Counsel