HomeMy WebLinkAbout92-560Dear Mr. Huber:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
March 20, 1992
Mr. Henry T. Huber 92 -560
25.1 University Road
Lincoln University, PA 19352
Re: Conflict, Public Official /Employee, Township, Zoning Officer,
Immediate Family, Spouse, Spouse as Township Supervisor.
This responds to your letter of February 16, 1992, in which
you requested advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Law
presents any prohibition or restrictions upon a zoning officer of
a second class township where the zoning officer's spouse is a
township supervisor.
Facts: As the Zoning Officer for Upper Oxford Township in Chester
County, Pennsylvania, you seek an advisory from the State Ethics
Commission. You state that the duties of the Zoning Officer are as
follows:
1. To enforce literally the provisions of the
Zoning Ordinance;
2. To receive, examine and issue all applications
for construction and use and occupancy
permits;
3. Record and file all applications for permits;
4. Maintain an official record of all business
and activities, including complaints of
violations of the ordinance;
5. Issue construction permits for uses and
structures involving special exceptions and
variances after such use and variances have
been approved by the Zoning Hearing Board; and
6. Identify and register nonconforming uses.
Mr. Henry T. Huber
March 20, 1992
Page 2
Your wife has just been sworn in as a Supervisor for Upper
Oxford Township. You inquire as to whether the fact that your wife
is a Township Supervisor in the same Township for which you serve
as Zoning Officer would create a conflict, and further whether you
may remain in the position of Zoning Officer.
Discussion: As the Zoning Officer for Upper Oxford Township in
Chester County, Pennsylvania, you are a public employee as that
term is defined under the Ethics Law, and hence you are subject to
the provisions of that law. Similarly, as a Township' Supervisor
for Upper Oxford Township, your spouse would be a public official
as that term is defined under the Ethics Law, and hence she is also
subject to the provisions of that law.
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.
The following terms are 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.
"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
Mr. Henry T. Huber
March 20, 1992
Page 3
employment.
"Immediate family." A parent, spouse,
child, brother or sister.
In addition, Sections 3(b) and 3(c) of the Ethics Law provide
in part that no person shall offer to a 'public official/erproyee
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 judgement 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 3(j) of the. Ethics Law provides as follows:
Section 3. Restricted activities.
(j) 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
disdlose 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
Mr. Henry T. Huber
March 20, 1992
Page 4
made as otherwise provided herein.
If a conflict exists, Section 3(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 applying the above provisions of. the Ethics Law to'the
circumstances which you have submitted, a public official /public
employee under Section 3(a) of the Ethics Law 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.
There is no specific prohibition in the Ethics Law which would
preclude you from retaining your position as Zoning Officer for
Upper Oxford Township merely because your wife is a Township
Supervisor for that same Township.
However, it is clear that both you and your wife are subject
to the restrictions of the Ethics Law such that if a conflict of
interest, as defined above, would arise as to a particular matter,
the individual or individuals with the conflict_ would be required
to abstain from any participation in that matter_and must observe
the disclosure requirements of Section 3(j) set forth above. For
example, as a Township Supervisor, your wife would have conflict
of interest as to matters before the Board of Supervisors involving
your salary, benefits, continued employment with the Township, and
the like. You would have a conflict of interest as to any matter
before you in your capacity as a Zoning Officer, where the use of
the authority of your public employment or confidential information
received by holding your public position would result in a private
pecuniary benefit for you, your wife, or any other member of your
immediate, or a business with which you or a member of your
immediate family is associated.
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.
Conclusion: As the Zoning Officer for Upper Oxford Township
in Chester County, Pennsylvania, you area public employee subject
to the provisions of the Ethics Law. As a Township Supervisor for
Upper Oxford Township in Chester County, Pennsylvania, your spouse
Mr. Henry T. Huber
March 20, 1992
Page 5
is a public official subject to the provisions of the Ethics Law.
The Ethics Law would not preclude your remaining. the Zoning Officer
for Upper Oxford Township where your wife serves as a Township
Supervisor. You, as a public employee, and your wife, as a public
official, are both subject to the restrictions to the Section 3(a)
of the Ethics Law and therefore neither of you may use the
authority of public office /employment or confidential . information
obtained through holding such a public position for your own
private pecuniary benefit, or a private pecuniary benefit for a
member of your immediate family, or for a business with which you
or a member of your immediate family is associated. In each
instance of a conflict .. of interest, the disclosure.requirements of
Section 3(j) as set forth above must be fully satisfied. 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.
such.
This letter is a public record and will be made available as
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 in writing and must be received at
the Commission within 15 days of the date of this Advice pursuant
to 51 Pa. Code S2.12.
Nr6.„
Vincent J.`bopko
Chief Counsel