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HomeMy WebLinkAbout80-053 NorrisGary J. Norris 808 Lartz Avenue Chambersburg, PA 17201 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 December 3, 1980 OPINION OF THE COMMISSION RE: Planning, Zoning Officer, Real Estate Sales Dear Mr. Norris: I. Issue: 80 -053 You ask whether it would present an actual conflict of interest or an appearance of a conflict of interest with the provisions of the Ethics Act for you to practice as a licensed Real Estate Salesman while serving as the Zoning Officer and Borough Planner for the Borough of Chambersburg. II. Factual Basis for Determination: You are presently employed by the Borough of Cham- bersburg. Your titles and /or tasks include serving as: (1) Borough Planner; (2) Zoning Officer and (3) Director of Economic Development. In general, as Borough Planner you are responsible for: (1) Comprehensive Planning; (2) Community Development, i.e. handling application and admin- istration of funds financed through the Housing and Commu- nity Development Block Grant Program;' (3) reviewing all subdivision and rezoning requests; and (4) administering the Building Code, Hcusing Code and various Health Regulations. In this last area -- Code administration -- you oversee the activities of two subordinates, the Housing Officer, and the Health Officer. The Housing Officer enforces and administers the Borough's Housing Code. The Housing Officer inspects buildings for compliance with the Housing Code and issues citations under that code. You do not generally approve or disapprove the inspection process, including the issuance of a citation. Citations are appealable to the Housing Board of Appeals. You have no relationship with the Housing Board of Appeals. The Health Officer licenses and inspects eating and drinking establishments within the Borough, using state standards. The Health Officer may Gary J. Norris December 3, 1980 Page 2 issues citations and /or refuse to issue licences. You do not generally approve or disapprove the inspection or licensing function, including the issuance of citations. These actions by the Health Officer are appealable to the Health Board. You have no relationship with the Health Board. As Borough Planner you review rezoning requests which are presented. You review these requests and refer these to the Planning and Zoning Commission (PZC). You are Recording Secretary of the PZC, but you have no vote on the PZC. You also review subdivision plans submitted to ascertain com- pliance with the Borough Zoning laws. These plans are also reviewed by the Manager of Utilities for the Borough and the Borough Engineer. The PZC then reviews the subdivision plan and makes a recommendation to Borough Council as to the plan presented. In your role as Zoning Officer you supervise a Building Officer who initially reviews all requests for building (including renovation) permits. No building permit may be issued without your final review and approval. If a permit is refused, review of the refusal and /or requests for variances or special exceptions may be presented to the Zoning Hearing Board. In your role as Director of Economic Development you are charged with the duty of promoting the economic develop- ment of the Borough primarily in the areas of commercial and industrial expansion. In September of 1979, you became a registered Real Estate Salesman. You intend to be associated with a broker and begin selling real estate sometime in the Spring of 1981. III. Applicable Law: Under the Ethics Act, "public employee" is defined as follows: Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a nonministerial nature with regard to: (1) contracting or procurement: (2) administering or monitoring grants or subsidies: (3) planning or zoning: (4) inspecting, licensing, regulating or auditing any person: or (5) any other activity where the official action has an economic impact of greater than a Gary J. Norris December 3, 1980 Page 3 deminimus nature on the interest of any person. 65 P.S. 402. The Ethics Act restricts the activities of "public employees ", as follows: No public official or public employee shall use his public officer or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 3(a) 65 P.S. 403(a). In general the purpose of the Ethics Act is found in Section 1 of the Act, repeated below: IV. Discussion: The legislature hereby declares that public office is a public trust and that any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust. In order to strengthen the faith and confidence of the people of the State in their government, the Legislature further declares that the people have a right to be assured that the financial interests of holders of or candidates for public office present neither a conflict nor the appearance of a conflict with the public trust. Because public confidence in government can be best sustained by assuring the people of the impartiality and honesty of public officials, this act shall be liberally construed to promote complete disclosure. Sec. 1, 65 P.S. 401. There is no doubt that you are a "public employee" as defined in the Ethics Act. -You are intimately involved with planning and zoning and are responsible for taking and /or recommending official action in these areas for the entire Borough. Your actions as a "public employee" are subject to the restrictions contained in the Ethics Act. The most pertinent restrictions in the Ethics Act are found in Section 3(a) which would preclude you from using your public office (Planner, Zoning Officer or Director of Economic Development) or confidential information acquired Gary J. Norris December 3, 1980 Page 4 through your job for your personal gain. In your job as Planner with the Borough, you surely possess specific confidential information as to the future comprehensive zoning plans of the Borough. You develop these plans as part of your job. As a real estate salesman, the potential for use, and therefore misuse, of this information is readily apparent. You could provide a prospective buyer or seller (to secure the listing) with information that a property is to be proposed for rezoning from residential to commercial, for example. Such information may significantly enhance your chance of securing the listing or making a sale. In your job with the Borough as Planner, you have confidential information as to the status of any property within the Borough as to whether it complies with the Building, Housing or Health Codes. You supervise the Officers who inspect, license and /or cite owners /properties for violations. You must be in a position to influence such matters. Surely in the process of selling any property within the Borough, knowledge of this nature may be valuable to buyer and /or seller alike. The issuance or refusal of a restaurant license is of vital economic interest to the buyer and seller of a property. It is easy to see how your inside knowledge, even as to the status of the licence, could be used to your advantage as real estate salesman. In your job as Zoning Officer, you have the final authority to issue or refuse an application for a building (including renovation) permit. This authority is vital in our consideration. This Commission previously ruled that a Township Zoning Officer could not operate as a home builder within the township where to do .so meant that the Zoning Officer would be responsible for issuing building permits for his own construction projects. See Simmons, 79- 056. We recognize that as real estate salesman and Zoning Officer you would not be issuing permits to yourself, per se. However, you would in some instances be issuing the permit to the prospective buyer or seller of the property whom you represent and from transaction you expect to realize some financial gain, directly or indirectly. The potential for issuing permits to the buyer or seller to build or renovate property which you are servicing as salesman exists as to every property within the Borough. The potential for refusing to issue a permit to the buyer or seller represented by competing salesmen exists as to every property within the Borough. Gary J. Norris December 3, 1980 Page 5 It is difficult, if not impossible to find an example or situation in which you would act as saleman for a Borough property where that property was not at some time subject to your review, jurisdiction or decision. The potential for use, and therefore misuse, of your office or confidential information acquired through your holding.of public office in relation to the sale of Borough property is inherent. This leads us to conclude that your proposed dual role as real estate salesman as to property within the Borough and Borough Planner and Zoning Officer is an inherent conflict or at least constitutes an appearance of a conflict of interest. This conflict or appearance of conflict would extend only to your proposed activities of the sale of property within the Borough of Chambersburg. This inherent conflict would also prohibit you from transmitting confidential information acquired from your job with the Borough to any Broker with whom you are associated, to the benefit of the Brokers, and yourself indirectly. The Commission, however, percieves neither an inherent conflict nor the appearance of a conflict of interest under the Ethics Act in your holding the position of Borough Planner and Zoning Officer and activities of a Real Estate Salesman as to property other than that located in the Borough of Chambersburg. Nor does the Commission find any inherent conflict or an appearance thereof under the Ethics Act in your proposed role as real estate salesman and your responsibilities as Director of Economic Development for the Borough. However, this does not alter our conclusion in° regard to any conflict with your role as Borough Planner and Zoning Officer. Nor does this finding preclude the possibility that the Borough may perceive your efforts at selling real estate not located within the Borough as a conflict with your duty of promoting development within the Borough of Chambersburg. We merely find no inherent conflict or appearance of a conflict under the Ethics Act as to your role as Director of Economic Development and real estate salesman. V. Conclusion: There would be an inherent conflict of interest or at least an appearance of a conflict of interest as prohibited by the Ethics Act if you were to engage in selling property located within the Borough while serving as Borough Planner and Zoning Officer for the Borough of Chambersburg. To avoid this conflict or appearance thereof you must restrict Gary J. Norris December 3, 1980 Page 6 your real estate sales efforts to property not located within the Borough. In any event, you may not use confi- dential information or transmit such information gained in your Borough job to the Broker with whom you might be associated where such use or transmittal might result in financial gain for yourself directly or indirectly, through the Broker. You may engage in authorized activitie of a Real Estate Salesman vis -a -vis real estate not located within the Borough, without violating the Ethics Act. Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any 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. This letter is a public record and will be made available as such. PJS /na AUL J. S TH Chairman