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HomeMy WebLinkAbout89-007 ConfidentialSTATE ETHICS COMMISSION 308 FINANCE BUILDING OP I NION OF PENNSYLVANIA 17120 Before: Helena G. Hughes, Chair G. Sieber Pancoast Dennis C. Harrington Michael J. Washo DATE DECIDED: July 27, 1989 DATE MAILED: .August 8, 1989 89 -007 Re: Public Employee, Secretary to Mayor, Counsel to Non - Profit Corporation Seeking Zoning Change in City This Opinion is issued in response to your request of June 21, 1989, for a confidential opinion. I. Issue: What restrictions does the Public Official and Employee Ethics Law impose upon an Executive Secretary to the Mayor of a City who serves as counsel to a non - profit corporation which is seeking certain zoning changes in the city. II. Factual Basis for Determination: You are the Executive Secretary to the Mayor of the City of X and also function as the Mayor's Chief of Staff. You are not a city official and serve at the will of the Mayor. You do not serve as a member of the City Board of Adjustment, the City of Planning Commission, or a member of City Council. Separate and apart from your employment with the City, you are a practicing attorney and serve as General Counsel to XYZ Corporation, a Pennsylvania non - profit, non - stock corporation which is qualified under Section 501(c)(3) of the IRC as a charitable organization. XYZ Corporation (XYZ) is contemplating the purchase of a parcel of land in the City and seeks certain zoning changes relative to that land. It is unclear whether the zoning changes will include applications for conditional use permits, text changes or zoning changes. You indicate that whatever action is taken will require action by the City Planning Commission, the Board of Adjustment, City Council and the Mayor. You have advised the Board of Directors of XYZ that you will withdraw as Counsel to the firm as long as the process is ongoing and XYZ has retained other counsel to handle this particular issue. You have also advised the Board of Adjustment, the Planning Commission and City Council by letters of June 21, 1989 of your position with XYZ, the contemplated purchase of realty by XYZ with a concomitant request for zoning Page 2 changes and your withdrawal as counsel during the zoning process. You conclude by requesting an opinion as to the nature and extent of the notifications that will be required of you as city employee under the Ethics Law. III. Discussion: As Executive Secretary and Chief of Staff to the Mayor, you are a public employee as that term defined under the Public Official and Employee Ethics Law of June 26, 1989, Act 9 of 1989. Accordingly, you are subject to the provisions of the Ethics Law and the restrictions therein are applicable to you. Section 3(a) of the Ethics Law 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 dr public employee, a member or his immediate family or a business with which he or a member r 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 Page 3 person's immediate family is a director, officer, owner, employee or has a financial interest. Finally, 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 or no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. In applying the above provisions of the Ethics Law to the instant matter, it is clear that XYZ is a business with which you are associated since you are employed by that corporation as general counsel. Accordingly, under Section 3(a) of the Ethics Law, you could not use the authority of office or any confidential information for the pecuniary financial gain of the business with which you are associated. You would have a conflict under the Ethics Law if you were to participate in your capacity as public employee regarding the zoning changes that have been requested by XYZ. It is noted that you have withdrawn as counsel for the period that the zoning application is being processed. The only question which remains is what requirements the Ethics Law would impose upon you as public employee relative to your conflict in this situation. Section 3(a) of the Ethics Law would require you to inform the Board of Adjustment, the Planning Commission, City Council and the Mayor not only of your position with XYZ and its interest in purchasing realty and seeking zoning changes, but in addition, to abstain from participation in this matter and to remove yourself from the zoning process. Further, you must instruct the three agencies as well as the Mayor and the mayor's staff not to transmit to you any matter or information relative to the zoning application, if made. 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 Act has not been considered in that they do not involve an interpretation of the Ethics Law. IV. Conclusion: As the Executive Secretary and Chief of Staff to the Mayor of the City of X, you are a public employee subject to the provisions of the Ethics Law. Under Section 3(a) of the Ethics Law, when a business with which you are associated applies for a zoning change, a conflict exists and you must abstain and remove yourself from the zoning process. In addition, you must notify the Planning Commission, City Council, the Board of Adjustment and the Mayor and the mayor's staff not to transmit any matter or information to you relative to the Page 4 zoning application, if made. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(9)(i), this Opinion is a co defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any civil or criminal proceeding, providing the requester has disclosed truthfully all the material facts and committed the acts complained of in reliance of the evidence of the advice given. The substance of this Commission Cpiniofl will be made available as a public record after the deletion of all identifying information. Finally, any person may'request the Commission to' reconsider its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. By the mmiss ena C. Hughes Chaii