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Home My WebLink About96-560 HalversonRita Halverson, CRB, CRS, GRI Coffee Springs Farm 555 East Main Street Somerset, PA 15501 Dear Ms. Halverson: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 31, 1996 96 -560 Re: Conflict, Public Official /Employee, Member, Real Estate Commission, PA Realtors Education Foundation, PAR Professional Standards Hearing Panel, Keystone Chapter Certified Residential Brokerage Managers, Cambria - Somerset Association of Realtors. This responds to your letter of April 29, 1996 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 of the State Real Estate Commission as to service on various real estate boards and associations. Facts: As a Member of the State Real Estate Commission, you request an advisory from the State Ethics Commission. Specifically, you inquire as to whether it would be permissible under the Ethics Law for you, as a Member of the State Real Estate Commission, to serve in the following positions: 1. Secretary of the Board of Directors of the Pennsylvania Realtors Education Foundation; 2. Member of the Pennsylvania Association of Realtors (PAR) Professional Standards Hearing Panel; 3. Member of the Board of Directors of Keystone Chapter Certified Residential Brokerage Managers; 4. Professional Standards Chairman for the Cambria - Somerset Association of Realtors. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(1 1) of the Ethics Law, 65 P.S. §§407(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 Halverson, 96 -560 May 31, 1996 Page 2 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. §§407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Member of the State Real Estate Commission, 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 which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. 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: Halverson, 96 -560 May 31, 1996 Page 3 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 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 Section 3(a) of the Ethics Law to the matter of your service as a Board Member of the State Real Estate Commission while you hold membership and /or officer positions with the Board of Directors of the Pennsylvania Realtors Education Foundation, the Pennsylvania Association of Realtors (PAR) Professional Standards Hearing Panel, the Board of Directors of Keystone Chapter Certified Residential Brokerage Managers, and the Cambria - Somerset Association of Realtors, the question becomes whether your simultaneously holding such positions constitutes an inherent conflict. In Johnson, Opinion 86 -004, the full Commission found an inherent conflict or incompatibility as to a person holding the positions of borough tax collector and borough treasurer because the individual would in effect be continually accounting to himself vis -a -vis both positions. The Commission has applied the above principle to individuals within the Department of State who attempted to serve as a member of licensing boards while simultaneously holding positions with the associations of the licensees that the boards regulated. In such cases, the Commission found conflicts with board members simultaneously holding positions in such associations: Allen, Opinion 79 -024 — State Funeral Board and Pennsylvania Funeral Directors' Association; Varro, Opinion 79 -074 — State Board of Barbers Examiners and State Association of Barbers; Fritzinger, Opinion 80 -008 — State Board of Landscape Halverson, 96 -560 May 31, 1996 Page 4 Architect and Pennsylvania Nurserymen Association; and Mayes /Peyser, Opinion 80- 022 — State Dental Council and Examining Board and State Dental Association. In DeLano, Opinion 88 -008, the Commission ruled that a public official who had a conflict due to his membership with a group that was involved in a matter before his governmental body could remove himself from the conflict by foregoing his membership with that group. Therefore, you are advised that you would have a conflict if you were to serve as a Board Member of the Real Estate Commission while holding the aforesaid positions with real estate boards and associations. Although the Commission does not have jurisdiction over your conduct as a private citizen, the action of removing yourself from such other positions would remove you from conflict so that you could serve in the position as a Board Member of the Real Estate Commission under the Ethics Law. 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. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: As a Board Member of the State Real Estate Commission, you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would prohibit a public official from serving as a Board Member in the State Real Estate Commission based upon an inherent conflict where that public official holds membership and /or officer positions with the following real estate boards and associations: the Board of Directors of the Pennsylvania Realtors Education Foundation, the Pennsylvania Association of Realtors (PAR) Professional Standards Hearing Panel, the Board of Directors of Keystone Chapter Certified Residential Brokerage Managers, and the Cambria - Somerset Association of Realtors. 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. This letter is a public record and will be made available as such. 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 thirty (30) 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 Halverson, 96 -560 May 31, 1996 Page 5 the Commission within thirty (30) days may result in the dismissal of the appeal. rely, incent WDop Chief Counsel