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HomeMy WebLinkAbout92-625Dear Mr. Luzi: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11 470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 • ADVICE OF COUNSEL- , ; September `9, 1992 Mr. Aaanan& N. Luzi 92 -625 Borough of West Newton 112 South Water Street West Newton, Pali 15089 Re: Conflict, Public Official /Employee, Borough Council Member, Immediate Family, Brother -in -Law, Developer. This responds to your letter of August 5, 1992, in which you requested_ advice from the State Ethics Commission. t$sue: Whether. the Public Official and Employee Ethics Law presents any prdhibition or restrictions upon a member and president of a borough council with regard to a development of . which his brother -in -law is an owner and developer-. Facts: As-President of West Newton. Borough Council in Westmoreland County, Pennsylvania,, you request an advisory as to a potential Conflict of interest. ` <. The Borough is in receipt of a $500,000.00 BID Grant for the purpose of laying an access road in an area known as Riverside Plaza located in West Newton Borough. The owners and developers of Riverside Plaza are P. Ben Stork and Harry Knopp. Harry Knopp is married to your sister. However,.yott state that Mrs. Knopp, your sister, is not a partner, nor does fix; name appear on any deeds or titles to any of the Riverside prc psrties. You state that after obtaining. a feasil k(it ,r.. by ai engineer,: Borough Council was required tcq vote on the type of .road to be laid out in Riverside Plaza -- a , road 6r a cul -de- sac. Upon advice of the Borough Solicitor, you abstained from a1 discussion, executive ,sessions and voting; due to a possibh private pecuniary benefit .to your sister. A vgte was taken on Jude 18, 1992, for a cul -de -sac, which vote was 3 -3 -2 with the mayor casting the tie breaking vote. You pose the following specific - .questions: Mr. Ainia' hd N. Lu4 Sept*ber 9, 1992 Page 2 1: Whettier you could paftioipite ift any ftture vote detei&iiring the type of rea.d to be laid out, due to the fact that your sistee is ndt a partner r property owner; 2. If You are found to have a cOnflict as to voting on the type of road • t� be built, 'Whether, after the vote is taken, you could participate and vote on the construction and activity of this piedject. eidCustion: At A Member and Presideht of Wet Newton Borough Council in Westmoreland Cunt, kenntylvania you are a public official as that term is defined under: the Bthics Law, and hence you are subject to the pfelfisidns of that law. Section 3(a) of the Sthi dd Law provided: Section 3. .kettridted...ACtiVitied. ) No public Official Of public eMPloyee thall engage • in conduct hat% aohttitutes a conflidt Of interest. The folio:Wing terms are defined in the Ethics Law as. follows: "donfiidt et dotiflidt Of intetest.* TYe by a public official or public eMplyee of the authority of his office et emptwbwit er Calif idehtial information tedeiVe4 throuiyh hie WA:nag i)ubila of fide Or_ eMpeymaKit tot the bediditiairy benefit of h-i! y a **abet of hit iithtedi&i &xnjJ of a bUtihest with vihleh he or a meffibet of hit imtdiatt family is iiedoiated, "ttintlitt et hteftilitt o intereet does net inditde ah Abtibk he*Ihg a de rainkilis economic impact *11-1 aft*Ctt to the athe degree a class cehsidtthl the general p*tblid dt a subelats teheittlftg of an indUktry, oddupatibn or other vttiap which iliblUaet the public — ofticial or pubic eMPIOyeei a itteitbet "of his itmdriate mil a. buOinett Lbh *)hich he cit a menibet rot his ImMediate twhaty i% attodiated, 4t6tity Of oftide tritiplbyttretit." he actta-i k:i6drelr provildied 1 63 -1 the 4:3L% of whliCh is nededsary to th e petturmanee "ef ditties and keepentibilitiet throe to a Mr. Armand N. Luzi September 9, 1992 Page 3 particular public office or_positian of public employment. ,- "Immediate family." A parent, spouse, child, brother or sister. "Business with which he is associated.-" Any business in- the person or a member of the person's- immediate family is a director, officer, owner, employee or has a financial interest. - - z> - "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. Lc Section 3(j) of the Ethics Law provides as follows:, Section 3. Restricted activities. tu (j) Where voting conflict %„ are_ 1 Dot , .. otherwise addressed by the ConstA ucaQ#:.d • -" Pennsylvania or by any law, rule,:r�g 1 n order or ordinance, the - folowing a procede ; � shall be employed. Any public, o4f4. . t . .t4r v .. , ..�,. public employee, who in the discharge of his - c- official 'duties, would be required "to votf on a matter that would result in a . conf ct- o or interest shall abstain from opting andtit Prior ,, L to the vote being taken, publicly an .aur . and disclose the nature 9f his intertst,•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 Ati matter before it because the number of members of the Mr. Armand H. Luzi September 9, 1992 Fage 4 body required to abstain from voting under the provisions of this section makes " tie majority or other legally required v e of approval unattainable, then such mee s shall be permitted to vote if :disclos'iire' are made as otherwise provided herein. In -- ; e case of a ' three- member governing body ` f a pQ1 . tica1 subdivision, where one membe has a staine from voting as a result of a 'ogpf Vitt of interest, and the refi tning two m* 044 of the governing body have cast opposing v¢tes, the member who has abstained shall be pe.tted to vote to break the'tie vote if disclosure is made as otherwise' pro `herein If a conflict exists, Section 3(j) requires the public official /employee to abstain _- afid ' to ` pub1441.y c)i the abstention' and reasons for "sam ; both orally and by' filing a written memorandum to that effect with the - " person recording the minutes or supervisor. - In applying the above rovisions of the Ethics Law tp ; the circums which you have provisions pursuht to Sectors 3(a) p€ the Ethics 1 a public off itial /public `eiplo se is p ohibited from using the authority` of public -Of five %employ newt' or confidential information ceived by h ilding such a pubric position for the pri pe gnefit of Val public ogf"ica-al /Ru iic employee himself, allYttld1.nber of his mane fiat ' f amity; or'. btu " " 1 eSs with which he or a member "of his immediate family i associated. Turning to your specific inquiries, the se analysis of the restrictions of the Et ics t,aw , - vmulti apply tQ tiVt.b. ' q yoilr specific inquiries. Since the term ", nunedi.a f prim .ly" is clet1.4ed to include a parent, spouse, child, brathet or- sibter etA since your and your brother - - law are not in a a re1atio ' s ip elineated above, Section 3(a) of ' the Ethths `Law liptld''r of I4 `and "restrictions upon your prospective_ official partiCipat.io t rs p twining to Riverside plaza. However, this Advi e i esd 5 d' c onc it .owed upon the express assumption that neither y u, tom sister, any other immediate family member, nor 4,51Y ,itn which you or any immediate family member `is assgc.atFd as 4ef }nec 'In the Ethics Law, has an interest it Riverside plaza 9r would ted eve a p; }Kate pecuniary benefit from 'your SrQpose "c uct: g,, • B41, Opinion 09 -016; Boyer;, Advice 91;-511.--1' . .. e _ The propriety of the proposed conduct has only beery 40 ; %ssed under the Ethics Law; the applicabilit f arty gth ktatut . cc3 e, ordinance, regulation or other` od of konciugt` at1 e tipAR % Ethics Law has not been consi 4ere ' in t iat t iy do 'not ` }gig$ Y interpretation Of the Ethics Law. SPeciically not 4 exec Mr. Armand N. Luzi September 9, 1992 Page 5 herein is the applicability of the- Borough Code. Conclusion: As a Member and President of West Newton Borough Council in Westmoreland County, Pennsylvania, you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics ,Law would not present any restrictions upon your future official conduct in matters involving Riverside Plaza of which your brother -in -law is an owner and developer This Advice is based and conditioned upon the express assumption that neither you, your sister, any other immediate family Wernher, nor any business with which you or any immediate family member is associated as defined in the Ethics Law, has an interest in Riverside Plaza ox. would receive a private pecuniary benefit from your proposed official conduct. 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 fullCommissi.pn 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 td -51 Pa . Code 52.12. 9 .ncerely, Vincent DopkQ Chief Counsel -74 F J.