HomeMy WebLinkAbout00-517 VallimontLisa A. Vallimont
8090 Lake Pleasant Road
Erie, PA 16509
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
February 15, 2000
FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics @state.pa.us
00 -517
Re: Conflict; Public Official /Employee; Second Class; Township; Zoning
Administrator; Recording Secretary.
Dear Ms. Vallimont:
This responds to your letter of January 13, 2000 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 I seq., presents any prohibition or restrictions upon a township zoning
administrator as to serving in the compensated position of recording secretary for the
township zoning hearing board.
Facts: For two years, you have been an office employee of Green Township, a
Second Class Township (Township). Your duties as office employee include assisting
the Township Secretary in daily office responsibilities.
You have recently been appointed Zoning Administrator for the Township. As
Zoning Administrator, you will be attending all Zoning Hearing Board meetings to
answer questions. You have submitted a copy of your job description, which is
incorporated herein by reference.
During the reorganizational meeting of the Board, a Chairperson and a Recording
Secretary will be named. Some members of the Board are concerned that no one will
volunteer to act as Recording Secretary at that time. The Recording Secretary is
responsible for submitting the minutes to the Board. The position of Recording
Secretary is a paid position by resolution of the Township Supervisors.
You ask whether, as Zoning Administrator, you may volunteer to act as
Recording Secretary if no one on the Board agrees to accept this position. If you
would be prohibited from serving as Recording Secretary, you ask whether a Township
Supervisor would be permitted to serve in this capacity.
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
Vallimont, 00 -517
February 15, 2000
Page 2
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), (11).
An advisory only affords a defense to the extent the requestor has truthfully disclosed
all of the material facts.
As Zoning Administrator for Greene Township, you are 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.
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.
Vallimont, 00 -517
February 15, 2000
Page 3
Section 1 103(j) of the Ethics Act provides as follows:
Section 1103. Restricted activities.
(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).
In each instance of a conflict, Section 1103(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 Act, 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 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.
Your specific inquiry shall now be addressed.
As for whether you would be permitted to serve as Recording Secretary for the
Zoning Hearing Board, you are advised that although the Ethics Act would not prohibit
you from acting in that capacity, you could not use the authority of your position as
Zoning Administrator or confidential information to advocate or advance your possible
Vallimont, 00 -517
February 15, 2000
Page 4
employment as Recording Secretary, assuming you would receive compensation for
serving in that position.
Your question as it relates to whether a township supervisor would be permitted
to serve as Recording Secretary is a third party request which cannot be addressed.
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 Second Class Township Code.
Conclusion: As Zoning Administrator for Greene Township, you are a public
official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics
Act "), 65 Pa.C.S. §1101 gt seg. The Ethics Act would not prohibit you from acting
as Recording Secretary to the Zoning Hearing Board; however, you could not use the
authority of your position as Zoning Administrator or confidential information to
advocate or advance your possible employment as Recording Secretary, assuming you
would receive compensation for serving in that position.
Lastly, the propriety of the proposed conduct has only been 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.
cerely,
ncent Dopko
Chief Counsel