HomeMy WebLinkAbout88-539 StevensSTATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
April 6, 1988
ADVICE OF COUNSEL
f
Mr. Thaddeus K. Stevens 88 -539
P. O. Box 61
Gaines, PA 16921 -0061 •
Re: Conflict of Interest, Township Supervisor, Real Estate Sales Associate
and President of Land Development Company
Dear Mr. Stevens:
This responds to your letter which was received by the State Ethics
Commission on February 22, 1988 in which you requested advice.
Issue: Whether a township supervisor may act both as a real estate associate
and president of a land development company in the township in which he is a
public official.
Facts: You state that you were elected as township supervisor in Gaines
Township, Tioga County, in November of 1987 and assumed office in January of
1988. You note that at a February 11, 1988 meeting, several individuals
stated that the Ethics Commission has determined that brokerage or real estate
sales within the municipality where a township supervisor serves may
transgress the provisions of the Ethics Act. After noting that you are also
the principal and president of the Sylvan Glen, Inc., a land development
company, which has some development projects within Gaines Township, you
request advice under the Ethics Act as to the propriety of your service as a
township supervisor under these facts and circumstances.
Discussion: As a township supervisor, you are a "public official" as that
term is defined in the State Ethics Act. 65 P.S. §402; 51 Pa. Code §1.1. As
such, your conduct is subject to the provisions of the Ethics Act. See Welz,
Opinion 86 -001.
Thaddeus Stevens
April 6, 1988
Page 2
Section 3(a) of the Ethics Act provides:
Section 3. Restricted activities.
(a) No public official or public employee shall use his
public office or any confidential information received
through his holding public office to obtain financial, gain
other than compensation provided by law for himself, a
member of his immediate family, or a business with which
he is associated. 65 P.S. 403(a).
Section 3(a) basically provides that a public official or employee may
not use his public office or confidential information to obtain a financial
gain other than compensation as provided for by law for himself or a member of
his immediate family or a business with which he is associated. Under this
provision, the Ethics Commission has determined that the use of office by a
public official to obtain a gain or benefit for himself or a member of his
immediate family which is not provided for in law constitutes a "financial
gain other than compensation provided for by law. �� These determinations have
been appealed to the Commonwealth Court of Pennsylvania which has affirmed the
Orders of the Commission. See McCutcheon v.
Commw. 529 (1983). See also Yocabet v. StateSEthiecstCommissionssion ,Pa. Pa.
Comm. , 531 A.2d 536 (1987). Thus, under this provision a public
official may not use his public position to secure benefits for himself or a
member of his immediate family, or a business with which he is associated
which are not provided: for by law, Domalakes, Opinion 85 -010; likewise, the
receipt of private financial gain or benefit through use of office is not
permitted under this section, Huff, Opinion 84 -015.
The Act defines business with which one is associated as follows:
Section 2. Definitions.
"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 holder
of stock. 65 P.S. 4C2.
Thaddeus Stevens
April 6, 1988
Page 3
In this respect, you are clearly associated with a real estate firm. and
you may, therefore, not use your public position as Township Supervisor in
Gaines Township to obtain a financial gain for yourself or your realty firm.
In this respect, the Commission has previously advised that a township
supervisor who also acts as a real estate broker in the same township may not
use his public position or any confidential information that may have been
obtained through his public position in order to obtain listings in his
private capacity. See Dennis, Advice 81 -520; Rudnitsky, Advice 81 -525. In
addition to this specific requirement, it is also clear that you may not
participate, as a public official, in any matter that comes before the
township that involves particular property for which you have acted as the
real estate agent or broker. This would also require that y6rmay not
participate in a matter that involves a client for whom you have provided
similar professional services. This would be applicable not only to those
particular clients and to that particular property for which you have already
acted as a real estate broker but would also include any proprty or
individuals with whom you will forseeably be involved in the future.
The Ethics Act also provides that this Commission may address other areas
of possible conflict. 65 P.S. §403(d). Generally, such a conflict would
develop in any situatio4 where the financial interests of the public official
would conflict with the public trust. 65 P.S. §401. Thus, this Comission
has determined in the past that an actual conflict of interest would be
created if the supervisor would be called upon to vote on matters that
affected his real estate clients. If the supervisor knows or has a reasonable
expectation at the time that he is called upon to vote on a matter that he may
be asked to do work on behalf of a client or that would involve a particular
parcel of ground for which he will be the listing agent, the supervisor should
refrain from voting on such matter and place the reason for his abstention on
the public record. Shirk, Advice 81 -533.
The above restrictions would also apply, for example, in situations where
you as a township supervisor would be called upon to participate in township
decisions regarding zoning, planning, and approving development plans that are
submitted by an individual who has employed your services as a real estate
broker, or that involve parcels of ground with which you were involved as a
private real estate professional.
Thaddeus Stevens
April 6, 1988
Page 4
In addition to the foregoing, the State Ethics Act also provides as
follows:
Section 3. Restricted activities.
(b) No person shall offeror give to a public official or
public employee ,or candidate for public office or a member
of his immediate, family or a business with which he is
associated, and no public official or public employee or
candidate for public office shall solicit or accept,
anything of value, including a gift, loan
contribution, reward, or promise of future employment
based on any understanding that the vote, official action,
or judgment of the public official or public employee or
candidate for public office would be influenced thereby.
65 P.S. 403(b).
This particular provision of the State Ethics Act is referenced herein not to
imply any wrongdoing but rather to provide a complete response the question
you have raised. The above provision of law could - clearly come in to play if,
for example, you as atownship supervisor artici at
particular piece of property and approve, in yourppublic capacity,�mattersg a
involving that property and shortly thereafter obtain the listing to market
said property. In this respect, if you as a township supervisor have already
acted in a matter that involves a particular piece of property, it
ma be the
better practice to forego any future employment in relation to that pr
operty.
As noted, however, this advice is general in nature and does not relate to any
specific factual circumstances as none have been provided in relation to this
request..
As to the matter of the Sylvan Glen, Inc., which is a land development
company wherein you are the principal and president, both Section 3(a) and
3(d) of the Ethics Act would also restrict you from using your public office
or any confidential information for the benefit of that company with which you
are associated. Further, under Section 3(d) of the Ethics Act, you could not
participate or vote on any matters involving Sylvan Glen, Inc. which would
come before the township. Further, in those situations it would be necessary
for you to note your abstention of public record together with the reasons for
your abstention.
Thaddeus Stevens
April 6, 1988
Page 5
Lastly, 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.
Conclusion: As a township supervisor, you are a public official subject to
the provisions of the State Ethics Act. Under Sections 3 (a) and 3(d) of the
Ethics Act, you as a supervisor and also as a private real estate broker in
the same township may not use your public position or confidential information
to obtain work as a real estate broker and may not participate in any matter
that comes before the township board of supervisors that relates to a
particular parcel of property for which you are the listing ag nt or you may
not participate in relation to a particular individual who has employed your
professional services. Further, as to the land development company, you as
township supervisor may not vote or participate in any matter which that
corporation has before the township and you must note your abstention of
record together with the reason for your abstention. Lastly, the propriety of
your conduct has only been addressed under the Ethics Act.
Pursuant to Section 7(9)(ii), 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 request that the full Commission review this Advice.
A personal appearance before the Commission will be scheduled and a formal
Opinion from the Commission will be issued. Any such appeal must be made, in
writing, to the Commission within 15 days of service of this Advice pursuant
to 51 Pa. Code 2.12.
VJD /jkc
Sincerely,
o- t.
lncent J. Dopko
General Counsel