HomeMy WebLinkAbout00-619 FreeburnRichard E. Freeburn, Esquire
Freeburn & Hamilton
4775 Linglestown Road
Suite 200
Harrisburg, PA 17112
Dear Mr. Freeburn:
ADVICE OF COUNSEL
October 20, 2000
00 -619
Re: Conflict; Public Official /Employee; Member; Township Zoning Hearing Board;
Attorney; Business With Which Associated; Real Estate Partnership with Solicitor.
This responds to your letter of September 19, 2000 by which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa. .S. §1101 et seq., presents any prohibition or restrictions upon a member of a
township zoning hearing board who is also an attorney, with regard to entering into a real
estate partnership with the board's solicitor relative to real estate that is not located within
the zoning hearing board's jurisdiction.
Facts: As a Member of a Township Zoning Hearing Board, you seek an advisory
from the State Ethics Commission. You have submitted facts which may be fairly
summarized as follows.
In your private capacity, you are an attorney with law offices located in Harrisburg,
Pennsylvania. You and the Solicitor for the Zoning Hearing Board intend to purchase a
building for your respective law practices and to enter into a real estate partnership
agreement. You state that the building which you plan to purchase is not located within
the Zoning Hearing Board's jurisdiction. You further state that you do not foresee any
issues coming before the Zoning Hearing Board that would implicate the real estate
partnership.
You ask for an advisory as to any problems under the Ethics Act that would arise
as the result of this prospective relationship with the Zoning Hearing Board's Solicitor.
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
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October 20, 2002
Page 2
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 a Member of a Township Zoning Hearing Board, you are a public official
subject to the provisions of the Ethics Act.
Section 1103(a) of the Ethics Act provides:
Section 1103. Restricted activities
65 Pa.C.S. §1102.
(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.
"Business." Any corporation, partnership, sole
proprietorship, firm, enterprise, franchise, association,
organization, self - employed individual, holding company, joint
stock company, receivership, trust or any legal entity
organized for profit.
"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.
"Financial interest." Any financial interest in a legal
entity engaged in business for profit which comprises more
than 5% of the equity of the business or more than 5% of the
assets of the economic interest in indebtedness.
Freeburn, 00 -619
October 20, 2002
Page 3
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 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.
The above provisions of the Ethics Act shall now be applied to your inquiry.
Subject to certain exceptions delineated in the definition of "conflict" or "conflict of
interest" above, it is a conflict of interest under Section 1103(a) of the Ethics Act for a
public official /public employee to use 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
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October 20, 2002
Page 4
immediate family, or a business with which he or a member of his immediate family is
associated.
Thus, pursuant to Section 1103(a) of the Ethics Act, you would be prohibited from
using the authority of your office as a Member of the Township Zoning Hearing Board, or
confidential information received by being in that position, for the private pecuniary
benefit of yourself or your real estate partnership with the Zoning Hearing Board Solicitor,
which would be a business with which you are associated. In each instance of a conflict
of interest, you would be required to abstain fully and to fully satisfy the disclosure
requirements of Section 1103( set forth above.
Because the property that is to be the subject of the real estate partnership
agreement is located outside of the jurisdiction of the Zoning Hearing Board, it would
appear unlikely that issues relating to the partnership would come before the Board.
However, if a matter would come before the Zoning Hearing Board that would result in a
financial gain to you or the partnership, you would have a conflict as to that matter and
would be required to abstain and to satisfy the disclosure requirements of Section 1103(j)
of the Ethics Act.
Under the facts which you have submitted, you would not have a conflict of
interest in matters pertaining to the Solicitor himself, such as, for example, his retention
and compensation, provided that: 1) there would be no financial connection between
such matters and your real estate partnership; and 2) there would be no improper
understandings as prohibited by Sections 1103(b) and 1103(c) 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 Pennsylvania Municipalities Planning Code.
Conclusion: As a Member of a Township Zoning Hearing Board, you are a public
official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics
Act "), 65 Pa.C.S. §1101 et seq. Pursuant to Section 1103(a) of the Ethics Act, you
would be prohibited from using the authority of your office as a Member of the Township
Zoning Hearing Board, or confidential information received by being in that position, for
the private pecuniary benefit of yourself, a member of your immediate family, or a
business with which you or a member of your immediate family is associated. Your real
estate partnership with the Zoning Hearing Board Solicitor would be a business with
which you are associated. In each instance of a conflict of interest, you would be
required to abstain fully and to fully satisfy the disclosure requirements of Section 1103(j)
set forth above. Under the facts which you have submitted, you would not have a conflict
of interest in matters pertaining to the Solicitor himself, such as, for example, his retention
and compensation, provided that: 1) there would be no financial connection between
such matters and your real estate partnership; and 2) there would be no improper
understandings as prohibited by Sections 1103(b) and 1103(c) of the Ethics Act. 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.
Freeburn, 00 -619
October 20, 2002
Page 5
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 §13.20. 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.
Sincerely,
Vincent J. Dopko
Chief Counsel