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Home My WebLink About97-573 UnruhRoss A. Unruh, Esquire Unruh, Turner, Burke & Frees PO Box 515 17 West Gay Street West Chester, PA 19381 -0515 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 27, 1997 97 -573 Re: Conflict, Public Official /Employee, Zoning Hearing Board, Member, Law Firm, Retired Partner, Zoning Application, Sprint. Dear Mr. Unruh: This responds to your letters of April 24 and May 2, 1997 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 a Zoning Hearing Board with regard to a zoning application where the applicant is represented by an attorney from the law firm from which the Member has retired. Facts: Your office represents the East Goshen Zoning Hearing Board (Board) and you have been specifically authorized by one of its Members, Joseph Neff Ewing, Jr., Esquire (Ewing) to request an advisory from this Commission on his behalf. The question you present is whether Ewing may sit for a Zoning Hearing Board application that you expect to be filed imminently by Sprint. Sprint is represented by an attorney from the law firm of Saul, Ewing, Remick & Saul. Ewing was a partner with this firm but is currently retired. Other than his pension and 401(k) plan payments, the only remuneration Ewing receives from Saul, Ewing, Remick and Saul is $40 per month which you state will not be affected in any way by the success or failure of the Sprint application or by any fees which the firm receives from Sprint. Although it is your belief that there would not be a violation of the Ethics Law, as a matter of caution, you request an advisory. 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 independent investigation of the facts, nor does it speculate as to facts which have not Unruh /Ewing, 97 -573 May 27, 1997 Page 2 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 East Goshen Zoning Hearing Board, Joseph Neff Ewing, Jr., Esquire (Ewing) 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 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. "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. "Financial interest." Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. Unruh /Ewing, 97 -573 May 27, 1997 Page 3 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 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 voting is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. 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 Unruh /Ewing, 97 -573 May 27, 1997 Page 4 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. Participation as to the Sprint zoning application would constitute a "use of authority of office," which is one of the elements of a conflict of interest under Section 3(a). However, the element of a private pecuniary benefit would not appear to be met under the facts which you have submitted. First, it does not appear that Ewing is associated with the law firm of Saul, Ewing, Remick & Saul. Ewing is a former partner and is currently retired and receiving a pension. Therefore, conditioned upon the assumptions that Ewing does not hold any of the statutorily enumerated positions and does not have a "financial interest" which would bring his former law firm within the definition of a "business with which he is associated," any pecuniary benefit flowing to that firm from the matter of the Sprint application would not satisfy the "private pecuniary benefit" element for a Section 3(a) transgression by Ewing. Furthermore, as to Ewing himself, given that the only remuneration that Ewing receives from the firm is a $40 per month payment, which payment you have expressly stated will not be affected in any way by the success or failure of the Sprint application or by any fees that the firm receives from Sprint, there would be no private pecuniary benefit flowing to Ewing from his participation in the Board's review of the Sprint zoning application. In the absence of a prohibited private pecuniary benefit, which is an essential element for establishing a conflict of interest under the Ethics Law, the necessary conclusion is that Section 3(a) of the Ethics Law would not preclude Ewing from participating in his capacity as a Zoning Hearing Board Member in the matter of the Sprint application. 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 respective municipal code or the Rules of Professional Conduct. Conclusion: As a Member of the East Goshen Zoning Hearing Board, Joseph Neff Ewing, Jr., Esquire (Ewing) is a public official subject to the provisions of the Ethics Law. Conditioned upon the assumptions that as a former partner, Ewing does not hold any of the statutorily enumerated positions and does not have a "financial interest" which would bring his former law firm, Saul, Ewing, Remick & Saul, within the definition of a "business with which he is associated," any pecuniary benefit flowing to that firm from the matter of the Sprint application would not satisfy the "private pecuniary benefit" element for a Section 3(a) transgression by Ewing. Furthermore, given that the only remuneration that Ewing receives from the firm is a $40 per month payment, which payment will not be affected in any way by the success or failure of the Sprint application or by any fees that the firm receives from Sprint, there would be no private pecuniary benefit flowing to Ewing should he participate in the Board's review of the Sprint zoning application. In the absence of a prohibited private pecuniary benefit, Section 3(a) of the Ethics Law would not preclude Ewing from participating in his capacity as a Zoning Hearing Board Member Unruh /Ewing, 97 -573 May 27, 1997 Page 5 in the matter of the Sprint application. 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 the Commission within thirty (30) days may result in the dismissal of the appeal. incerely, Vincent J. o p ko Chief Counsel