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Home My WebLink About92-567Marc D. Jonas, Esquire Silverman & Jonas Suite 412 One Montgomery Plaza Norristown, PA 19401 Dear Mr. Jonas : : STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE Off' COUNSEL April 22, 1992 92-567 Re: Conflict, Public Official /Employee, Solicitor, Zoning Hearing Board, Attorney, Representation of Private Clients Before Township Board of Supervisors. F This responds to your letter of March S 1992, in whin. you requested- advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a township zoning Wearing board solicitor with regard to representing private clients before the township board of. supervisors. Facts: As the recently appointed Zoning Hearing Board Solicitor for Towamencin Township in Montgomery County, Pennsylvania, you seek an advisory from the State Ethics Commission. You ask whether a zoning hearing board solicitor, hired by the municipal zoning hearing board to provide legal representation for that board alone, may appear on behalf of private clients before the township governing body on other matters including land development. You note that because of your land use practice, you may be asked to appear before the Township Board of Supervisors with regard to land use applications. Discussion: It is initially noted that your request for an advisory may only be addressed as to your own prospective conduct. As the Zoning Hearing Board Solicitor for Towamencin Township in Montgomery 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. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. Marc D. Jonas, Esquire April 22, 1992 Page 2 (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following termsare'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 employment. "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. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that nv 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 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 guestio presented. Marc D. Jonas, Esquire April 22, 1992 Page 3 Section 3(j) of,the Ethics' 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 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 - whohas abstained shall be permitted to vote to break the tie vote if disclosure is 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 wrjtten memorandum to that effect with the person recording the minu or supervisor. It is initially noted that you have posed a very narrow question as to whether, as the Zoning Hearing Board Solicitor for Towamencin Township, you may represent private clients before the Township Board of Supervisors on matters including land development and land use applications. This Advice - be restricted to responding to that narrow issue. Pufsuant to Section 3(a) of the Ethics Law, a public Marc D. Jonas, Esquire April 22, 1992 Page 4 official /public employee is prohibited from using the authority �f 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. Under . the circumstances which you have submitted, your governmental body would be limited to the - Zoning Hearing Board of Towamencin Township and would not include the.Towns2ip Board of Supervisors. Thus, in your appearances on behalf of private clients before the Township Board of Supervisors, which is not your governmental body, Section 3(a) would not restrict you because the authority of your public position would not extend to the Township Board of Supervisors. This Advice, however, is expressly conditioned upon the assumption that as the Zoning Hearing Board Solicitor you would not be using any confidential information received by holding that public position for the private pecuniary benefit of yourself, any member of your immediate family, your law firm and /or its clients, or any other business with which you are associated. Furthermore, it is noted that this Commission would not have the jurisdiction to regulate the conduct of attorneys in the private practice of law. See, Pennsylvania Public Utilitv Bar Association v. Thornburgh, 62 Pa. Cmwlth. 88, 434 A.2d 1327 (1981), aff'd. per curiam, 498 Pa. 589, 450 A.2d 613 (1982). 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 Rules of Professional Conduct or the Second Class Township Code. Conclusion: As the Zoning Hearing Board Solicitor for Towamencin Township in Montgomery County, Pennsylvania, you are a public employee subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not restrict you from representing private clients before the Township Board of Supervisors. This Advice is expressly conditioned upon the assumption that you would not use confidential information received by holding your public position for a prohibited private pecuniary benefit. 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 tomniStion, and evidence of good faith conduct in any other civil or criminal Marc D. Jonas Esquire April 22, 1992 Page 5 proceeding, prdviding the requester . bas disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. -This letter is`a public recotd 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa.' -Code §2.12. Sincerely, Vincent J. Dopko Chief Counsel