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HomeMy WebLinkAbout97-611 MorrisonJames R. Morrison Chief Administrator Municipality of Murrysville 4100 Sardis Road Murrysville, PA 15668 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 30, 1997 97 -61 1 Re: Conflict; Public Official /Employee; Municipality; Code Enforcement Officer /Zoning Officer /Sewage Enforcement Officer; Subdivision; Land Development; Member of Immediate Family. Dear Mr. Morrison: This responds to your letters of August 19, August 26, and September 2, 1997 by 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 Municipal Code Enforcement Officer /Zoning Officer /Sewage Enforcement Officer with regard to the proposed subdivision and land development for a parcel of land that he owns. Facts: As the Chief Administrator of the Municipality of Murrysville, Westmoreland County, you request an advisory from the State Ethics Commission regarding the conduct of your employee, Alan Latta (Latta). Latta has been an employee of the Municipality for approximately 12 years. His current position is Code Enforcement Officer /Zoning Officer /Sewage Enforcement Officer. His responsibilities include inspection of commercial and residential building activities and enforcement of zoning and other municipal codes relative to building activities. Latta reports directly to the Director of Community Development who is responsible for review and recommendations to the Planning Commission and Council on all development activities within the Municipality. In reporting to the Director of Community Development, Latta is often consulted on building, grading, and zoning issues in the review of an application. In your initial letter of inquiry dated August 19, 1997, you indicated that Latta's father was the owner of a 125 acre parcel within the Municipality which was being proposed for a subdivision and land development involving approximately 300 dwelling Morrison /Latta, 97 -61 1 September 30, 1997 Page 2 units. You stated that Latta has been involved as a local builder in the community and that it was widely acknowledged that he would be the builder of the houses for this proposed development. You stated that an application form and documents for the project had been submitted to the Municipality. The application was signed by Latta's father, but the application fee was paid with a check from Latta's personal checking account. Furthermore, the required "Environmental Impact Statement" was signed by Latta as the person who completed the form. You stated that there were several deficiencies in the application package, and the Surveyor for the project was notified that it was not accepted because of those deficiencies and the fact that Latta was not an authorized agent of the applicant. Subsequently, an Agent's Authorization Form was submitted by Latta's father authorizing Latta to act in his behalf. Based upon the facts set forth above, you initially posed the following specific inquiries. You asked whether, given Latta's duties and responsibilities, there would be a conflict of interest in his involvement with the proposed application: as an authorized agent for the applicant; as a person directly involved in the review process application; and as a blood relative of the applicant. You further asked whether there would be a conflict of interest based upon a potential financial gain by Latta due to the project sought by his father during Latta's employment by the Municipality. By letter dated August 26, 1997, you subsequently advised the Commission that Latta himself is now the owner of the property in question. You submitted copies of Latta's job description and the land contract, which documents are incorporated herein by reference. 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. It is further noted that pursuant to Sections 7(10) and (1 1) of the Ethics Law, an opinion /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 /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. Since advisories are not issued as to past conduct, this Advice may not — and does not — address the propriety of any past actions taken by Latta. As Code Enforcement Officer /Zoning Officer /Sewage Enforcement Officer for the Municipality of Murrysville, Latta is a public official /public employee subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law provides: Morrison /Latta, 97 -611 September 30, 1997 Page 3 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. "Immediate family." A parent, spouse, child, brother or sister. 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 Morrison /Latta, 97 -611 September 30, 1997 Page 4 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. In each instance of a conflict, 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 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 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. Section 3(a) prohibits a private pecuniary benefit to a public official's /public employee's immediate family member (such as his father) just as it does to the public official /public employee himself. It is clear that in his capacity as a public official /public employee, Latta would have a conflict of interest with regard to the proposed subdivision and land development of the land that he owns. In each instance of a conflict of interest, Latta would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 3(j) as set forth 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 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 Home Rule Charter of the Municipality of Murrysville and /or the Murrysville Code. Conclusion: As Code Enforcement Officer /Zoning Officer /Sewage Enforcement Officer for the Municipality of Murrysville, Alan Latta (Latta) is a public official /public Morrison /Latta, 97 -611 September 30, 1997 Page 5 employee subject to the provisions of the Ethics Law. In his capacity as a public official /public employee, Latta would have a conflict of interest with regard to the proposed subdivision and land development of the land that he owns. In each instance of a conflict of interest, Latta would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 3(j) as set forth above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(1 1), 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. erely, cent J. opk Chief Counsel