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HomeMy WebLinkAbout07-536 BLEICHEdward Rudolph, Esquire Rudolph, Pizzo & Clark, LLC Four Neshaminy Interplex Suite 105 Trevose, PA 19053 Dear Mr. Rudolph: ADVICE OF COUNSEL May 17, 2007 07 -536 This responds to your letters dated April 12, 2007, and April 18, 2007, by which you requested an advisory from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., would present any prohibitions or restrictions upon a member of a municipal water and sewer authority board with regard to participating in matters involving a sewer expansion project mandated by the Pennsylvania Department of Environmental Protection where the authority board member resides within the area to be publicly sewered. Facts: You are Solicitor for the Northampton, Bucks County, Municipal Authority "Authority "), a water and sewer authority. You have been authorized by John Long "Long ") and Gretel Bleich ( "Bleich "), Members of the Authority Board, to seek an advisory from the State Ethics Commission on their behalf as to the following. The Pennsylvania Department of Environmental Protection ( "DEP ") has mandated that Northampton Township ( "the Township "), through the Authority, provide public sanitary sewer service to a residential area within the Township. You state that this mandate is consistent with the Township's Act 537 Plan, which was filed with DEP approximately ten years ago. You further state that since the Act 537 Plan was created and approved by the Township and not the Authority, the DEP mandate to cause the sewer system to be constructed is directed to the Township. Long and Bleich reside within the area that is to be publicly sewered. You seek guidance as to whether Long and Bleich would have a conflict of interest with regard to participating in matters involving the sewer expansion project, as for example, by authorizing and overseeing the construction of the extended sanitary sewer system. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester Rudolph/Long/Bleich, h /Long /Bleich, 07 -536 May 17, 2007 Page 2 based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all of the material facts. As Members of the Authority Board, Long and Bleich are public officials subject to the provisions of the Ethics Act. Sections 1103(a) and 1103(j) of the Ethics Act provide: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. (j) Voting conflict. - -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. 65 Pa.C.S. §§ 1103(a), (j). The following terms are defined in the Ethics Act as follows: § 1102. 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. The term 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 Rudolph/Long/Bleich, h /Long /Bleich, 07 -536 May 17, 2007 Page 3 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 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. 65 Pa. C. S. § 1102. Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. The use of authority of office is not limited merely to voting, but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. In each instance of a voting conflict, Section 1103(j) of the Ethics Act requires the public official /public 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. In the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Act, then voting is permissible provided the disclosure requirements noted above are followed. See, Pavlovic, Opinion 02 -005. In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. Pursuant to Section 1103(a) of the Ethics Act, Long or Bleich would have a conflict of interest in matters before the Authority Board that would financially impact himself /herself. Given that Long and Bleich live within the residential area to be publicly sewered, they would each have a conflict of interest in matters pertaining to the sewer expansion project unless one of the exclusions to the statutory definition of "conflict" or "conflict of interest" would be applicable. The statutory definition of "conflict" or "conflict of interest" includes two exclusions, hereinafter referred to as the "de minimis" exclusion and the "class /subclass exclusion." The de minimis exclusion precludes a finding of a conflict of interest as to an action having a de minimis (insignificant) economic impact. Thus, when a matter that would otherwise constitute a conflict of interest under the Ethics Act would have an insignificant economic impact upon a public official, a member of his immediate family, or a business with which he or a member of his immediate family is associated, a conflict would not exist and Sections 1103(a) and 1103(j) of the Ethics Act would not restrict participation in such matter. See, Schweinsburq, Order 900. In that the inquiry involves Long's and Bleich's participation in matters pertaining to a sewer expansion project that would provide sanitary sewer service to the area in which they reside, this exclusion would generally not be applicable. In order for the class /subclass exclusion to apply, two criteria must be met: (1) the affected public official /public employee, immediate family member, or business with which the public official /public employee or immediate family member is associated Rudolph/Long/Bleich, h /Long /Bleich, 07 -536 May 17, 2007 Page 4 must be a member of a class consisting of the general public or a true subclass consisting of more than one member; and (2) the public official /public employee, immediate family member, or business with which the public official /public employee or immediate family member is associated must be affected "to the same degree" as the other members of the class /subclass. 65 Pa.C.S. § 1102; see, Graham, Opinion 95 -002 (citing Van Rensler, Opinion 90 -017); Rubenstein, Opinion 01 -007. The first criterion of the exclusion is satisfied where the members of the proposed subclass are similarly situated as the result of relevant shared characteristics. The second criterion of the exclusion is satisfied where the individual /business in question and the other members of the class /subclass are reasonably affected to the same degree by the proposed action. Kablack, Opinion 02 -003. In the instant matter, the submitted facts do not enable a conclusive determination as to whether Long or Bleich would be a member of an appropriate subclass or whether Long or Bleich would be affected by matters pertaining to the sewer expansion project "to the same degree" as other members of such a subclass. Accordingly, you are generally advised that as to each Board Member (i.e., Long or Bleich), in order for the class /subclass exclusion to apply to the Board Member, there would have to be at least one other individual residing in the area to be publicly sewered: (1) who would be similarly situated to the Board Member as the result of relevant shared characteristics, so as to qualify with the Board Member as a member of a subclass; and (2) who would be reasonably affected to the same degree as the Board Member would be affected by the Authority Board's action as to such matter. Kablack, supra. Factors that would be considered in determining whether the class /subclass exclusion would apply would include: (1) the amount of sewage assessments and any other costs for the various property owners; (2) the size and use of the affected properties; (3) the value of the affected properties before and after the sewer expansion; and (4) any other relevant factors. When neither the de minimis exclusion nor the class /subclass exclusion would be applicable to the Board Member, the Board Member would have a conflict of interest under Section 1103(a) of the Ethics Act in matters before the Authority Board pertaining to the sewer expansion project. In each instance of a conflict of interest, the Board Member would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. The propriety of the proposed conduct has only been addressed under the Ethics Act; 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 Act. Specifically not addressed herein is the applicability of the Municipality Authorities Act. Conclusion: As Members of the Board of the Northampton, Bucks County, Municipal Authority ( "Authority "), John Long ( "Long ") and Gretel Bleich ( "Bleich ") are public officials subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Given that Long and Bleich live within a residential area that is to be publicly sewered pursuant to a sewer expansion project mandated by the Pennsylvania Department of Environmental Protection, they would each have a conflict of interest in matters pertaining to said sewer expansion project unless one of the exclusions to the statutory definition of "conflict" or "conflict of interest" would be applicable. In that the inquiry involves Long's and Bleich's participation in matters involving a sewer expansion project that would provide sanitary sewer service to the area in which they reside, the de minimis exclusion would generally not be applicable. The submitted facts do not enable a conclusive determination as to whether the class /subclass exclusion would be applicable. As to each Board Member (i.e., Long or Bleich), in order for the class /subclass exclusion to apply to the Board Member, there would have to be at least one other individual residing in the area to be publicly Rudol h /Long /Bleich, 07 -536 May 17, 2007 Page 5 sewered: (1) who would be similarly situated to the Board Member as the result of relevant shared characteristics, so as to qualify with the Board Member as a member of a subclass; and (2) who would be reasonably affected to the same degree as the Board Member would be affected by the Authority Board's action as to such matter. When neither the de minimis exclusion nor the class /subclass exclusion would be applicable to the Board Member, the Board Member would have a conflict of interest under Section 1103(a) of the Ethics Act in matters before the Authority Board pertaining to the sewer expansion project. In each instance of a conflict of interest, the Board Member would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), an 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, provided the requester 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. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717 - 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Robin M. Hittie Chief Counsel