The URL can be used to link to this page

Home My WebLink About97-585 FordEdward J. Ford, M.D. 995 Washington Crossing Road Newtown, PA 18940 Dear Dr. Ford: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 16, 1997 97 -585 Re: Conflict, Public Official /Employee, Member, Upper Makefield Zoning Hearing Board, Campaign, Township Supervisor, Developer. This responds to your letter of May 13, 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 who is also running for the office of Township Supervisor regarding a proposal which is before the Board where the Member's campaign is being supported by citizens who are actively opposed to the proposal. Facts: As a Member of the Upper Makefield Zoning Hearing Board (Board), you seek an advisory from the State Ethics Commission. Recently, a developer presented a proposal to the Board for one or more variances. The Board is currently awaiting receipt of various legal documents before a decision is rendered. In the interim, you have begun a campaign for the Office of Township Supervisor. After submitting your petition for that Office, you were contacted by a member of the Upper Makefield Political Action Committee, a group of citizens who were actively looking to support candidates, to attend a function that they were sponsoring. In attendance at this function were several township residents who have actively opposed the developer's plans. Subsequently, this group of residents has decided to support you and another individual who is also running for Supervisor. This other candidate actively opposes the developer being granted any variances regarding the property in question. You state that at no time at this meeting did you or anyone else discuss the developer's proposal or any other proposed developments in the Township. You have Ford, 97 -585 June 16, 1997 Page 2 never stated to anyone, including your immediate family, your position on this or any other development and have maintained a completely open mind, reviewing this issue on the basis of the facts presented at the Board meetings. You request an advisory as to whether the above would constitute a conflict of interest for you under the Ethics Law and whether you should recuse yourself from voting on the issue. Discussion: - It is initially noted that pursuant to Sections 7(10) and 7(11) 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 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 Upper Makefield Zoning Hearing Board, 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. Ford, 97 -585 June 16, 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 applying Section 3(a) of the Ethics Law to the instant matter, your attendance at a function which was attended by several township residents who oppose the developer's plan does not in and of itself create a conflict on your part. In Wolfgang, Opinion 89 -028, the issue was whether a candidate for supervisor would have a conflict, if elected, as to matters involving contractors who contributed to her campaign. Since the candidate was not a public official at the time of the receipt of the contributions, the Commission decided the case under Sections 3(b) /(c), but not Section 3(a), and concluded: Ford, 97 -585 June 16, 1997 Page 4 A contribution to a campaign for public office does not per se create a conflict if the candidate is elected. Since there is no indication that an understanding exists between the contributions and the candidate's future voting on issues concerning the contributors, the Ethics Law would not restrict such person's voting in such issues based expressly upon the above assumption. Therefore, your attendance at this function, based upon and limited by the submitted facts, would not create a conflict on your part as to the developer's proposal before the Zoning Hearing Board. 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. Conclusion: As a.Member of the Upper Makefield Zoning Hearing Board, you are a public official subject to the provisions of the Ethics Law. Based upon and limited by the submitted facts, your attendance at a function which was attended by several township residents who oppose a developer's plan does not in and of itself create a conflict on your part under Section 3(a) of the Ethics Law as to the developer's proposal before the Zoning Hearing Board. 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 1. 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. cerely, incen D. Chief Counsel