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HomeMy WebLinkAbout98-533 BruchJerry F. Hanna, Esq. Hanna, Young, Upright & Catina, LLP 800 Main St. Stroudsburg, PA 18360 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 24, 1998 98 -533 Re: Conflict, Public Official /Employee, Township Planning Commissioner, School District Employee, School District's Construction of School within Township. Dear Mr. Hanna: This responds to your letters of February 13 and February 19, 1998 by which you requested advice from the State Ethics Commission. issue: Whether the Public Official and Employe Ethics Law presents any prohibition or restrictions upon a Township Planning Commissioner with regard to a Land Development Plan for the construction of a school within the township, where the Planning Commissioner is employed by the School District. Facts: As Solicitor for the Polk Township Planning Commission in Monroe County, Pennsylvania, you seek an advisory on behalf of Gary Bruch, a Polk Township Planning Commissioner. Polk Township is a Second Class Township generally operating under the Second Class Township Code and, with respect to its Planning Commission, under the requirements set forth in the Pennsylvania Municipalities Planning Code (MPC). In his capacity as Planning Commissioner, Mr. Bruch takes part in the review and ultimate recommendation to be made by the Commission to the Board of Supervisors on subdivisions and land developments proposed within the Township. You state that Mr. Bruch is also employed full -time in an Administrative capacity with the Pleasant Valley School District. It is anticipated that within the next several months, the Pleasant Valley School District will submit to the Polk Township Planning Commission a Land Development Plan for the construction of an Intermediate School. You ask whether Mr. Bruch, as a member of the Polk Township Planning Commission, may participate in the review process of a Land Development Plan for the construction of an Intermediate School in the Pleasant Valley School District and whether he may ultimately vote on the Planning Commission's recommendation to the Board of Supervisors. 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 Hanna, 98 -533 March 24, 1998 Page 2 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. 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) (Emphasis added). "Conflict of interest" is defined in the Ethics Law as follows: 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. 65 P.S. §402 (Emphasis added). For the conflict of interest provisions of the Ethics Law to apply to Mr. Bruch in his capacity as a Polk Township Planning Commissioner, he would in that capacity have to qualify as either a "public official" or "public employee." Of the two capacities, the only one which could even arguably apply to Mr. Bruch as a Township Planning Commissioner would be the capacity of "public official." However, the Ethics Law defines the term "public official" as follows: Section 2. Definitions "Public official." Any person elected by the public or elected or appointed by a governmental body, or an appointed official in the Executive, Legislative or Judicial Branch of the State or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense. or to otherwise exercise the power of the State or any political subdivision thereof. Hanna, 98 -533 March 24, 1998 Page 3 65 P.S. 5402 (Emphasis added). The facts which you have submitted indicate that the Polk Township Planning Commission does not make final decisions, but rather, only makes recommendations to the Township Board of Supervisors. Therefore, to the extent that the Polk Township Planning Commission would be purely advisory and would not have the authority to expend public funds (other than to reimburse personal expenses) or to otherwise exercise the power of the State or any political subdivision thereof, Mr. Bruch, in his capacity as a Polk Township Planning Commissioner, would t)ga be considered a "public official" and would not be subject to the conflict of interest provisions of the Public Official and Employe Ethics Law. 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. Specifically not addressed herein is the applicability of the Second Class Township Code or the Municipalities Planning Code. Conclusion: To the extent that the Polk Township Planning Commission would be purely advisory and would not have the authority to expend public funds (other than to reimburse personal expenses) or to otherwise exercise the power of the State or any political subdivision thereof, Gary Bruch, in his capacity as a Polk Township Planning Commissioner, would not be considered a "public official" and would not be subject to the conflict of interest provisions of 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 1. 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. �n� Sjgcrrely, 1,Lcst-Jr) G404 Vincent J. Dopko Chief Counsel