HomeMy WebLinkAbout92-599Mr. John A. DeMark
855 Kelly Street
Vandling, PA 18421
Dear Mr. DeMark:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
June 16, 1992
92 -599
Re: Simultaneous Service; Member, Zoning Hearing Board; Taxation
Audit Specialist, Department of Revenue.
This responds to your letter of May 7, 1992, in which you
requested advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Law imposes
any prohibition or restrictions upon a taxation audit specialist
for the Commonwealth of Pennsylvania, Department of Revenue from
also serving as a member of a borough's zoning hearing board.
Facts: As a Taxation Audit Specialist (Auditor) for the
Commonwealth of Pennsylvania, Department of Revenue (DOR) you seek
an advisory from this Commission regarding your simultaneous
service as a Member of the Zoning Hearing Board of the Borough of
Vandling.
You initially note that you are both an Auditor for DOR and a
Certified Public Accountant. However, as a condition of your
employment with DOR, you are prohibited from practicing public
accounting. A copy of your job description for your position with
DOR has been submitted and is incorporated herein by reference.
You were recently appointed to the Zoning Hearing Board of the
Borough of Vandling, which Board consists of three uncompensated
members. You describe the Board's function as hearing and deciding
challenges to land use ordinances, appeals from zoning officer
determinations, applications for variances and other types of
appeals involving land use ordinances. You have enclosed Article
IX from the Pennsylvania Municipalities Planning Code Act (MPC) of
1968, P.L. 805, No. 247 (reenacted and amended December 21, 1988,
P.L. 1329, No. 170), which concerns the functions of the Board and
is incorporated herein by reference.
Mr. John A. DeMark
June 16, 1992
Page 2
You state that at DOR's Bureau of Audits, Auditors are
prohibited from accepting assignments where a potential conflict of
interest exists. Furthermore, you state that Members of the Zoning
Hearing Board are also expected to disqualify themselves from
hearings where their presence creates a conflict.
You specifically inquire as to whether your employment. with
DOR as an Auditor and your appointment to the Zoning Hearing Board
of the Borough of Vandling presents any conflict of interest.
Discussion: As a Taxation Audit Specialist for the Commonwealth of
Pennsylvania, Department of Revenue, you are a "public employee" as
that term is defined in the Ethics Law and hence you are subject to
the provisions of the Ethics Law. 65 P.S. §402; 51 Pa. Code S1.1.
Section 3(a) of the Ethics Act 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 under the Ethics Law:
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 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
Mr. John A. DeMark
June 16, 1992
Page 3
particular public office or position of public
employment.
In addition, Sections 3(b) and 3(c) of the Ethics Law 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 jdugment of the
public official /employee would be influenced thereby.
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
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.
If a conflict exists, Section 3(j) requires the public
official / emplcyee 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
Mr. John A. DeMark
June 16, 1992 -
Page 4
minutes or supervisor.
In applying the above provisions of the Ethics Law to the
question of simultaneous service, there.does' not appear to be any
real possibility of a private . pecuniary benefit, or inherent
conflict arising if you were to serve both as a public official/
- employee in your capacity as an Auditor for DOR and as a Member Of
the Zoning Hearing Board of the Borough of Vandling. . Basically,
the Ethics Law does not state that it is inherently incompatible
for a public official /employee to serve or be employed as an
Auditor for DOR and as a member of a borough's zoning hearing
board. The main prohibition under the Ethics Law and Opinions of
the Ethics Commission is that one may not serve the interests of
two persons, groups, or entities whose interests may be adverse.
Smith Opinion, 89 -010. In the situation outlined above, you would
not be serving entities with interests which are adverse to each
other.
However, if a situation arises where you or .the respective
entities you represent develop an adverse interest, then you must
remove yourself from that particular matter and satisfy the
disclosure requirements of Section 3(j) set forth above. If such
a situation would arise, additional advice may be sought from the
Commission.
Lastly, 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 Governor's Code of
Conduct.
Conclusion: As a Taxation Audit Specialist (Auditor) for the
Commonwealth of Pennsylvania, Department of Revenue (DOR), you are
a "public employee" subject to the provisions of the Ethics Law.
Subject to the restrictions and qualifications noted above, as a
public official /employee, you may, consistent with Section 3(a) of
the Ethics Law, simultaneously serve in the position of Auditor for
DOR and as a Member of the Zoning Hearing Board for the Borough of
Vandling. Lastly, the propriety of the proposed course of 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.
Mr. John A. DeMark
June 16, 1992
Page 5
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 52.12.
Very truly yours,
Vincent J. Dopko,
Chief Counsel