HomeMy WebLinkAbout98-509 ConfidentialSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
February 4, 1998
98 -509
Re: Conflict, Public Official /Employee, Recorder of Deeds, Real Estate Salesman,
Business with which Associated.
This responds to your letter of January 5, 1998 in which you requested
confidential advice from the State Ethics Commission.
Issue: Whether the Public Official and Employe Ethics Law presents any prohibition
or restrictions upon a Recorder of Deeds who as a licensed real estate agent and
employee of a real estate firm represents buyers or sellers.
Facts: Your law firm, A, represents Mr. B who has been elected C County Recorder
of Deeds. Mr. B has requested and authorized your firm to obtain a confidential advisory
from the State Ethics Commission with respect to his duties. Mr. B, who is also
employed by D, holds a real estate salesperson's license. Mr. B represents parties
interested in selling and /or purchasing real estate. He is not an officer, owner, employee
nor an agent of a title insurance company. He does not prepare nor submit documents
to the Recorder of Deeds Office in any county. You state that in reviewing Mr. B's duties
as Recorder of Deeds, you found no indication that he would possess any confidential
information which could be used for a private pecuniary benefit for anyone. You inquire
whether a Recorder of Deeds acting as a real estate salesperson is engaging in conduct
that constitutes a conflict of interest.
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 Recorder of Deeds, Mr. B is a public official as that term is defined in the Public
Official and Employe Ethics Law ( "Ethics Law "), and hence he is subject to the provisions
of that law.
Section 3(a) of the Ethics Law provides:
Confidential Advice, 98 -509
February 4,1998
Page 2
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.
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
Confidential Advice, 98 -509
February 4,1998
Page 3
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 applying the provisions of Section 3 (a) of the Ethics Law to the instant matter,
the real estate firm in which Mr. B is employed is a "business with which he is
associated" as that term is defined under the Ethics Law. The Ethics Law would not bar
Mr. B from serving as Recorder of Deeds while acting privately as a real estate salesman.
However, may not use the authority of his public position — or confidential information
obtained by being in that position — for the advancement of his own private pecuniary
benefit or that of a business with which he is associated. Pancoe, Opinion 89 -01 1.
Examples of conduct that would be prohibited under Section 3(a) would include: (1) the
pursuit of a private business opportunity while acting in a public capacity, Metrick,
Order
No. 1037;
(2) the use of governmental facilities, such as governmental telephones,
postage, staff, equipment, research materials, or other property, or the use of
governmental personnel, to conduct private business activities, Freind, Order No. 800;
Pancoe, supra; and (3) the participation in an official capacity as to matters involving the
business with which the public official /public employee is associated in his private
capacity, such as the review /selection of its bids or proposals, Gorman, Order No. 1041.
If the private employer or business with which the public official /public employee
is associated would have a matter pending before the governmental body, the public
official /public employee would have a conflict of interest as to such matter. Miller,
Opinion No. 89 -024. In each instance of a conflict of interest, the public official /public
employee would be required to abstain from participation and to satisfy the disclosure
requirements of Section 3(j).
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 County Code.
Conclusion: As County Recorder of Deeds, Mr. B is a public official subject to the
provisions of the Ethics Law. Although the Ethics Law would not bar Mr. B from serving
as Recorder of Deeds while acting privately as a real estate salesman, he may not use the
authority of his public position, or confidential information obtained by being in that
Confidential Advice, 98 -509
February 4,1998
Page 4
position, for the advancement of his own private pecuniary benefit or that of the business
with which he is associated. The use of governmental facilities, such as governmental
telephones, postage, staff, equipment, research materials, or other property, or the use
of governmental personnel, to conduct private business activities would be prohibited by
the Ethics Law. 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.
erely,
wc.x.AI
Vincent J.`Dopko
Chief Counsel