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HomeMy WebLinkAbout00-507 YakopecSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1 -800- 932 -0936 ADVICE OF COUNSEL January 26, 2000 Stephen Yakopec, Jr., Esquire Attorney At Law 1715 Fifth Avenue 00 -507 Arnold, PA 15068 Re: Conflict; Public Official /Employee; Solicitor; Second Class; Township; Zoning Hearing Board; Solicitor; Immediate Family; Son; Board Member. Dear Mr. Yakopec: This responds to your letter of December 13, 1999 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 sea., presents any prohibition or restrictions upon a member of a township zoning hearing board where the board member's son is the solicitor for the board. Fac s: You are the Solicitor for the Zoning Hearing Board of Harmar Township, a Second Class Township. Your father has applied for a position on the Township Zoning Hearing Board (Board). You request an advisory on your and your father's behalf as to whether, as a Member of the Board, your father would have a conflict of interest given the fact that you are the Solicitor for the Board. You have found nothing prohibiting this scenario; however, you are aware that your father could not vote to hire you or set your salary. You reference Deluca, Advice No. 99 -567 where the Commission addressed a similar situation and opine that Deluca is controlling on the issue that you have posed. You have submitted a copy of Deluca, which is incorporated herein by reference. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§1107(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 Pa.C.S. §§1107(10), (1 1). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us Yakopec, 00 -507 January 26, 2000 Page 2 Upon being appointed as a Member of the Zoning Hearing Board of Harmar Township, your father will become a public official as that term is defined in the Ethics Act, and hence you are subject to the provisions of that Act. Section 1 103(a) of the Ethics Act provides: Section 1103. Restricted activities. (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. §1103(a). The following terms are defined in the Ethics Act as follows: Section 1102. 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. The term 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. 65 Pa.C.S. §1102. In addition, Sections 1103(b) and 1103(c) of the Ethics Act 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 judgment 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 1103(j) of the Ethics Act provides as follows: Section 1 103. Restricted activities. Yakooec, 00 -507 January 26, 2000 Page 3 (j) Voting conflict. - -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. 65 Pa.C.S. §1103(j). requires the public In each instance of a conflict, Section 1103(j) re q 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 uirements noted above followed. eta voting permissible r, Advi e91-523 S the disclosure req In applying the above provisions of the Ethics Act to the instant matter, pursuant to Section 1 103(a) of the Ethics Act, 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. The term "immediate family" is defined to include a parent, spouse, child, brother, or sister. As the son of a Board Member, you would be in one of the familial relationships delineated above. As to the question you have posed, the Ethics Act would not preclude your father from serving as a Member of the Township Zoning Hearing Board merely because you are his son and the Solicitor for the Board. However, your father could not participate in matters before the Board that would result in a financial gain to you or a business with which you are associated, such as voting to retain you or your firm as Solicitor for the Board. A conflict would even exist as to negative votes, as for example, a vote to eliminate a competitor thereby assuring your appointment Yakooec, 00 -507 January 26, 2000 Page 4 retention as Solicitor. See, Pepper, Opinion 87 -008. In each instance of a conflict of interest, your father would be required to abstain from participation and to observe the disclosure requirements of Section 1103(j) of the Ethics Act. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the respective municipal code. Conclusion: Upon being appointed as a Member of the Harmar Township Zoning Hearing Board, your father will become a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. The Ethics Act would not preclude your father from serving on the Board merely because you, his son, are the Solicitor for the Board. However, if a matter would arise before the Board that would result in a financial gain to you or a business with which you are associated, your father would have a conflict under Section 1103(a) and would be required to abstain from Lastl the propriety and of the t is s onlybeen Section 1103(j). Y. addressed under the Ethics Act. Pursuant to Section 1107(11), an 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, provided 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. rely, Vincent J. opko Chief Counsel