HomeMy WebLinkAbout07-566 LAJEUNESSEGregory A. Shantz, Esquire
Garner & Bauer
2050 East High Street
Pottstown, PA 19464
Dear Mr. Shantz:
ADVICE OF COUNSEL
August 8, 2007
07 -566
This responds to your letter of July 2, 2007, and your faxed transmission
received July 10, 2007, by which you requested advice 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 the president
of a borough council, whose spouse is the borough tax collector, with regard to
participating in /voting on subdivision and land development plans in the borough where
such new development would increase the borough tax base /assessed values in the
borough and thereby correspondingly increase the amount of compensation received by
the borough tax collector.
Facts: As Solicitor for the Borough of Pennsburg ( "Borough ") in Montgomery
ounty, you have been authorized by Eric Lajeunesse ( "Mr. Lajeunesse"), who is a
Member and President of Borough Council, to request an advisory from the State Ethics
Commission on his behalf as to the following.
Mr. Lajeunesse's spouse, Jennifer Lajeunesse ( "Mrs. Lajeunesse "), is the elected
Borough Tax Collector. Mrs. Lajeunesse is compensated for collecting borough, school
district, and county taxes at rates set by the respective taxing authorities.
The county pays Mrs. Lajeunesse a monthly stipend that is dependent upon the
number of bills that are issued each year, and the school district pays Mrs. Lajeunesse
a fee that is based upon the number of bills that are returned with proper payment. You
state that the Lajeunesses do not have any impact on the compensation rates set by the
county or the school district.
Mrs. Lajeunesse's compensation for collecting Borough taxes is set by Borough
Council. Borough Council has set Mrs. Lajeunesse's compensation for collecting
Borough taxes at 3.5% of all Borough taxes collected during discount and face or net
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August 8, 2007
Page 2
periods, and at 5% of all taxes collected in the penalty period. You state that Mr.
Lajeunesse abstains from participating or voting as to the setting of Mrs. Lajeunesse's
compensation for collecting Borough taxes.
The Borough is a small community of approximately 3,000 residents. You state
that the Borough is largely "built- out," and that any development within the Borough is
typically small and includes in -fill development.
The Borough has a Planning Committee, which is comprised of Borough Council
Members. Mr. Lajeunesse is Chairman of the Planning Committee. You state that the
Planning Committee is only an advisory body, and that all decisions with respect to land
development plan approvals are made by Borough Council.
You state that new development within the Borough would likely increase the
existing tax base /assessed values in the Borough and thereby correspondingly increase
the amount of compensation Mrs. Lajeunesse would receive as the Borough Tax
Collector. You describe the resulting increase to Mrs. Lajeunesse's compensation as
being to a minor degree."
Based upon the above submitted facts, you ask whether Mr. Lajeunesse would
have a conflict of interest in participating in or voting on subdivision and land
development plans in the Borough where such new development would increase the
amount of compensation that Mrs. Lajeunesse would receive as the Borough Tax
Collector. You express your view that such action by Mr. Lajeunesse would not violate
the Ethics Act, the Borough Code, or the Local Tax Collection Law.
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
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.
In his capacity as a Member and President of Borough Council, Mr. Lajeunesse
is a public official 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
Shantz, 07 -566
August 8, 2007
Page 3
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
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.
"Immediate family." A parent, spouse, child, brother
or sister.
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 /public 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
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August 8, 2007
Page 4
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.
Mr. Lajeunesse's spouse is clearly a member of his "immediate family" as that
term is defined by the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, Mr.
Lajeunesse would generally have a conflict of interest in matters before Borough
Council that would financially impact himself or his spouse.
Under the submitted facts that new development in the Borough: (1) would
increase the tax base /assessed values in the Borough; and (2) would thereby
correspondingly increase the amount of compensation received by Mrs. Lajeunesse as
the Borough Tax Collector, you are advised that Mr. Lajeunesse would have a conflict of
interest in participating in or voting on matters pertaining to or impacting the approval of
subdivision and land development plans in the Borough except when 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, referred to herein as the "de minimis" exclusion and the "class /subclass
exclusion."
The de minimis exclusion precludes a finding of 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, a conflict would not exist and Section 1103(a) of the
Ethics Act would not be implicated. See, Kolb, Order 1322; Schweinsburq, Order 900.
The Commission has determined the applicability of the de minimis exclusion on a
case -by -case basis, considering all relevant circumstances. In the past, the
Commission has found amounts ranging from $2 to approximately $500 to be de
minimis. See, Bixler v. State Ethics Commission, 847 A.2d 785 (Pa. Cmwlth. 2004).
However, you are cautioned that an economic impact may aggregate over time, rather
than be limited to a particular increment of time such as a month or year. Confidential
Opinion, 05 -001.
The submitted facts do not disclose by what amount Mrs. Lajeunesse's
compensation as Borough Tax Collector would increase due to new development in the
Borough resulting from Borough Council's approval of subdivision and land
development plans. Therefore, the submitted facts do not enable a conclusive
determination as to whether the de minimis exclusion would apply in the instant matter.
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
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" (in no
way differently) than the other members of the class /subclass. 65 Pa.C.S. § 1102; see,
Kablack, Opinion 02 -003; 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
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August 8, 2007
Page 5
reasonably affected to the same degree by the proposed action. Kablack, supra.
Under the submitted facts, as the Borough Tax Collector, Mrs. Lajeunesse would
not be part of a class /subclass of similarly situated individuals, but rather would be a
uniquely situated individual whose compensation as Borough Tax Collector would be
increased by new development arising from Borough Council's approval of subdivision
and land development plans. Therefore, the class /subclass exclusion would not apply
in the instant matter.
When neither the de minimis exclusion nor the class /subclass exclusion would be
applicable, Mr. Lajeunesse would have a conflict of interest under Section 1103(a) of
the Ethics Act as to participating in or voting on matters pertaining to or impacting the
approval of subdivision and land development plans in the Borough. In each instance of
a conflict of interest, Mr. Lajeunesse would be required to abstain fully from participation
and to 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 Borough Code or the Local Tax Collection Law.
Conclusion: As a Member and President of Borough Council for the Borough of
Pennsburg ( "Borough "), Eric Lajeunesse ( "Mr. Lajeunesse ") is a public official subject to
the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §
1101 et seq. Jennifer Lajeunesse ( "Mrs. Lajeunesse "), who is the Borough Tax
Collector and Mr. Lajeunesse's spouse, is a member of Mr. Lafeunesse's "immediate
family" as that term is defined by the Ethics Act. Pursuant to Section 1103(a) of the
Ethics Act, Mr. Lajeunesse would generally have a conflict of interest in matters before
Borough Council that would financially impact himself or his spouse. Under the
submitted facts that new development in the Borough: (1) would increase the tax
base /assessed values in the Borough; and (2) would thereby correspondingly increase
the amount of compensation received by Mrs. Lajeunesse as the Borough Tax
Collector, you are advised that Mr. Lajeunesse would have a conflict of interest in
participating in or voting on matters pertaining to or impacting the approval of
subdivision and land development plans in the Borough except when one of the
exclusions to the statutory definition of "conflict" or "conflict of interest" would be
applicable. The submitted facts do not enable a conclusive determination as to whether
the de minimis exclusion would be applicable. The class /subclass exclusion would not
apply because Mrs. Lajeunesse as Borough Tax Collector would not be part of a
class /subclass of similarly situated individuals, but rather would be a uniquely situated
individual whose compensation as Borough Tax Collector would be increased by new
development arising from Borough Council's approval of subdivision and land
development plans. When neither the de minimis exclusion nor the class /subclass
exclusion to the statutory definition of "conflict" or "conflict of interest" would be
applicable, Mr. Lajeunesse would have a conflict of interest under Section 1103(a) of
the Ethics Act as to participating in or voting on matters pertaining to or impacting the
approval of subdivision and land development plans in the Borough. In each instance of
a conflict of interest, Mr. Lajeunesse would be required to abstain fully from participation
and to 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
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August 8, 2007
Page 6
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