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