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HomeMy WebLinkAbout98-593 WilsonDavid L. Wilson P.O. Box 253 Sarver, PA 16055 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL September 16, 1998 FAX : (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: sec @state.pa.us 98 -593 Re: Conflict; Public Official; Township Supervisor; Immediate Family; Sister -in -law; Brother -in -law; Zoning Change. Dear Mr. Wilson: This responds to your letter of August 17, 1998 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 township supervisor with regard to voting on a property owner's request for a zoning change when the sister of the supervisor's spouse is a neighboring property owner to the requestor. Facts: You are a member of the Board of Supervisors in Buffalo Township, Butler County, Pennsylvania, which is a five - member Board. A property owner in the Township has requested that the zoning of his property be changed from Commercial to Manufacturing. Several neighboring property owners, including your wife's sister and her husband, oppose the zoning change, believing it would reduce their property values. You also believe that the zoning change would reduce the value of all residential properties in close proximity to the property in question. You state that a vote regarding the property owner's request for a change in zoning will take place at a Special Meeting of the. Township Supervisors on August 26, 1998. Noting that in -laws are not immediate family members under the Ethics Law, you request an advisory from the State Ethics Commission as to whether you, as a Township Supervisor, may participate and vote on the request for a change of zoning. 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 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. Wilson, 98 -593 September 16, 1998 Page 2 As a Supervisor for Buffalo Township, Butler County, you are a public official as that term is defined in the Public Official and Employee Ethics Law ( "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. 65 P.S. §403(a). The following terms that pertain to Section 3(a) are defined in the Ethics Law as follows: 65 P.S. §402. 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 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. However, since the term "immediate family" is defined to include a parent, spouse, child, brother or sister and since your wife's sister and her husband are not in a familial relationship delineated above, Section 3(a) of the Ethics Law would not Wilson, 98 -593 September 16, 1998 Page 3 prohibit you from voting on her neighboring property owner's request for a change of zoning. Baker, Opinion 89 -016. Lastly, 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. Conclusion: As a Supervisor in Buffalo Township, Butler County, you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not restrict you from voting on a property owner's request for a zoning change when the sister of your spouse is a neighboring property owner to the requestor in that your spouse's sister and her husband are not members of your immediate family as that term is defined under 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. S nc4rely, WTI Vincent J. \opko Chief Couns�-I