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HomeMy WebLinkAbout92-624STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 9, 1992 Jonathan P. Foster, Esquire 92 -624 Foster & Hartley 320 South Main Street P.O. Box 278 Athens, PA 18810 Re: Conflict, Public Official /Employee, Borough, Joint Building Code Enforcement Program, Building Code and Zoning Code Enforcement Officer, Private Employment or Business, Real Estate Agent, Building Contractor. Dear Mr. Foster: This responds to your letters of June 25, 1992, and July 24, 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 Building Code and Zoning Code Enforcement Officer, serving two boroughs in a Joint Building Code Enforcement Program, who also works as a part -time red g estate sales person or as a part -time building contractor in the same area. Facts: You request an advisory on behalf of applicants for the position of Building Cod@ 4nd Zoning Code Enforcement Officer, who, if selected, wpuld be s @ruing Athens Borough and Sayre Borough through a Joint Building Code Enforcement Program. You have enclosed a copy of the job description that the respectjue Borough Councils propose to utilize in the selection of an in4lxidual for the po§ tion, which job description is incorppr @d herein by refer @npe. On of these applicaRtg also works as a p rt -time real estate sales person irk th `� S@ �the4s area. The ot iidividu41 b cons}dered for is osl ioz� works as °a part -time A bui4 .ng contractor in the same y ant Sayre- Athe>ls area. You request an advisory from this Commission as to 11141Wier Jonathan P. Foster, Esquire September 9,1992 Page 2 there is a conflict of interest As to - these applicants. In the event there is not a conflict, you request that the advisory provide guidance to the Bordughs and Applicants, should they be employed, of their responsibilities to aVdid conflicts and properly disclose conflicte.. piscussion: It is initially noted that your request for an advisory is general in nature, and therefore -this Advice responding to your request must also be general. AL Building Code and .Zoning Code Enforcement Officer for the Joint Building Code Enfo'rcement Program for Athens Borough and Sayre Borough would be a "public employee" as that term ig 4efined under the Ethics Law, and hence would be subject to ths provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. p.estricted Activities. (a) No public official or public employee shall engage in conduct that Constitutes aconflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. Definitions. "Conflict or conflict of intlrest." Us, by . _ y • • a p014 official or public 91 of the R4th9riliii of his offiae.0remel4WIdni or any conflaential information r9cePrOg through his holdi4 public office or employment for the private pec4niary benef# of himsolf, a member OF his ilarTa4ate family oz 4.1111#12104# with which he or a m4mber of hi g iffpgaiate family is associated. "Conflict" or "coliflict . of intereites not -include an action having a d*'10 economic impact or hici affeets the same dgee a class c9nfaV of g14. genereI 'public or a sa:q1ass coma of an -1 %i indutxy occupation or other group which inclu4eS the public officiel or public ' 19Y@Pf 0140:710F of his imme$44tf family or usineff 1144 h er a M40 of 41q immediate family is asgociated. "14.9rItY pf office or emp/oyment.." The Actual PorMr Pr9v140 by law, 44-4/34r4Ise of which is necessary to the performance of Jonathan P. Foster, Esquire September 9, 1992 Page 3 duties and responsibilities unique to a particular .. lar 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. "Financial interest." Any financial ' interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. 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 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 . :4estri.cted 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 abo interest shall'abstain from voting and, prior to the vote being taken, publicly-announce and ' PC disclose 'the nature of his interest as a ;public' record: in a written memorandum filed wit 1 - the person responsible for recording the minuteo of the meeting at which the vote is takeh, 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. ••- Jonathan P. Foster, Esquire September 9, 1992 Page 4 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 hat 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 written memorandum to that effect with the person recording the minutes or supervisor. In applying the above- provisions of. the Ethic i Law to the circumstances which you have submitted pursuant to §ection 3 (a) of the Ethics Law, a public -official/public employee is -prohibited from using the authority of public office/employment or confidential information received by hojding such a public position for the private pecuniary benefit of the public of ficial/public employee himself , any member of his immediate family, or a business with which he or a member of his immediate famify is associated. In each instance of a conflict of interest, the public official/ public employee is required to abstain from any participation of any nature whatsoever, and to fully - satisfy the disclosure requirements of Section 3(j) as it foithaliOr. - In this case, the first candidate who LA a part-time real estate sales person is clearly associated with a real estate firm. The second candidate who is a part-time hullding contractor is clearly associated with that business, evenif he is a sole proprietor. Pursuant to Section 3(a), thee individials could therefore not use the authority of the public position of Building Code and Zoning Code Enforcement -Officer, or confidential information received by holding that cosition, or the private pecuniary benefit of themselves or the respective 'businesses with which they are associated. Conflicts of interest would,also'arime as to matters involving business clients. *Wet, 00.44on No 69- 024. -• , Furthermore, the successful candidate may not use the authority of the public position as Building Code and Zoning Code Enforcement Officer or confidential information received by holding that position to obtain listings in his private capacity as a real estate agent, See, Stevens, Advice 88-539; Rennig, Advice 81-520; Jonathan P. Foster, Esquire September 9, 1992 Page 5 Rudnitskv, Advice 8I -525, or to obtain private work as a contractor. It is „also clear that the successful' candidate may not participate in any matter in his public capacity that involves particular property for which he .has acted as real estate agent or contractor. Furthermore, the Section 3 prrohibitions apply not only-to those paxticu .ar clients and to those particular properties for which the individual has already acted as a real estate agent or contractor, but would also include any property or . prospective client with whom the individual would foreseeably be involved in the future.. Thus, if the successful candidate knows or has a reasonable expectation at the time that he is called upon to act in an official capacity on a matter that he maybe asked to do private work on behalf of a person or entity involved, or with regard to a Particular parcel of property involved, this individual should refrain from any official participation such matter and satisfy the disclosure requirements of Section 3(j). Some obvious examples where the above restrictions of Section 3(a) would apply would include situations where the Building Code and Zoning Code Enforcement Officer would be called upon to perform his duties as to former, present or prospective private clients or with regard to particular parcels of property with . which the Officer had been involved or would reasonably be expected to become involved in a priv capacity. Sections 3(b) and 3(c) noted above could clearly come into play if, for example, the Building Code and Zoning Code Enforcement Officer were to participate in a matter involving a party Ar piece of property and approve, in his public capacity, matters involving that property and shortly thereafter obtain „Rr vate work involving the property, such as the listing to mar t or . a construction contract: In this respect, if the .ndl a 10.1 d have already acted in a matter that involves a pAti cular' ! q4 of property, it might be the better practice to - foie*Q Wti' dtdte employment in relation to that property. This advisor', 'being general in nature, does not relate to any' specific factual circumstances as none have been provided in relation to your request. Given that your` request for an advisory was general in nature, and therefore necessitated a general response, it is.recomtnended that should” particular circumstances arise in. the future where � a conflict nay , exist for the successful candidate who filis . this position, further advice be sought from this Coimnission. 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 Jonathan P. Foster, Esquire September 9s, 19.9 2 •age 6 herein. is the applicability of the Borough Code or the Pennsylvania Municipalities Planning Code. Cq;1ue4444: A Building Cede. and Zoning Code Enforcement Officer Agr the Joint Building Code forAement Program of Athens Borough aid Sstyre Bar"Qugh woul4 be a , public ,employee sub jsgt to the grow cis of the Ethics Law. Pursuant to Section 3(a,) of the Mice l a E rild4 g Qode and Zoning Code, Enforcement Officer also suing as a part-A3 a real estate "sales person or as a part -. time building contractor: in the same area max not use the authority of his publao position PX, cOP information obtained by holding that position for the private pecuniary a f it Of himself, any business with which he iss asspeiated including but not limited to the real estate firm Qr contracting business.s or business clients % The authority of this Public position and /or confidential information may not, be used to ebtain private work, fdr example as a real estate agent or as a contractor. The Building Code and Zoning Code Enforcement Officer may not participate in any matter coming before him that relates to a particular parcel of property for whioh he is or may reasonably expect to be the listing agent or contractor, nor may he participate in relation to a particular ildividual who has employed or may reasonably be e*pected to efftiq his private services. In each instance of a F.onf ri.ct inters r as set forth above,, the Building Code and Zoning Code Eh f oroemt Officer would be required to-abstain from any participation of any nature whatsoever and to fully satisfy the disclosuret,tequirementS of Section 3(j) as set forth above Las the propriety of the proposed gonduct has only been addressed ungier the Ethics Law. Pursuant to Section 7(11), this A -6@ i S s. `domplete defense in any enforcement proceeding initiated la the co#mission , and evidence of good faith conduct in :any 04er. civil or criminal proceeding, providing the requestor had .disclosed .truthfully all the material facts and committed the acts complained of in reliance on the Advi,e4ee Oven. This letter is a- public: record and will be made available as such, ri.nal. y, if you disagree with this 4d er if. you have any reason to challenge same, yeu m4y reguest that the f411 Commission review this Advi.e'e , A peraeaa1 appearance Were the commission will be scheduled end a fgrm41 Opinion fr@m the gemmission will be issued, Any Pugh appeal must be "in iting af}d must be receiued at the Commission within 15 day@ of the date of this Advice pursuant to 51 Pa. Code 53-12- nciere1y, Vin , 000ko Chief eot}nsel