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HomeMy WebLinkAbout08-514 DONATELLIGuy A. Donatelli, Esquire 78 Stonehedge Drive Glenmoore, PA 19343 Dear Mr. Donatelli: ADVICE OF COUNSEL February 7, 2008 08 -514 This responds to your two letters of January 7, 2008, 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 a township supervisor, who in his private capacity is employed as an attorney with a law firm, with regard to voting on a real estate developer's request for conditional use approval for a township property, where: (1) the property to be developed is a portion of a larger parcel to be developed, the remainder of which parcel lies in a bordering township; and (2) the attorney's law firm serves as solicitor for the bordering township. Facts: As a newly - elected Supervisor for Upper Uwchlan Township ( "Upper Uwchlan "), located in Chester County ( "the County "), Pennsylvania, you request an advisory from the State Ethics Commission based upon the following submitted facts. In your private capacity, you are a practicing attorney with the law firm of Lamb McErlane, P.C. ( "the Firm "). The Firm is the appointed Solicitor for a number of municipalities throughout the County. You state that the Firm is not Solicitor for the Upper Uwchlan Board of Supervisors or any other board or commission of Upper Uwchlan, and that the Firm provides no legal services whatsoever to Upper Uwchlan. For forty years, the Firm has acted as Solicitor for Uwchlan Township ( "Uwchlan "). For the last three years, you have been the Firm attorney primarily responsible for providing services to Uwchlan. Uwchlan has common boundaries with Upper Uwchlan. Both Townships are second class townships. A real estate developer ( "the Developer ") owns a piece of property ( "the Property ") that lies in both Townships. You state that only a small portion of the Property lies in Upper Uwchlan. The Developer plans to construct a hotel and a restaurant on the Property, with only a parking area and an entrance /exit proposed for the Upper Uwchlan portion of the Property. The Developer has filed requests for conditional use approvals in both Townships, seeking certain permitted exceptions for the development from the respective Township ordinances. You state that as to each Township, the Developer's request for conditional use approval in such Township requires a public hearing before Donatelli, 08 -514 February 7, 2008 Page 2 the Township's Board of Supervisors. Thereafter, at a public meeting, the Township's Board of Supervisors will determine whether to grant the requested relief based upon that Township's ordinances. Uwchlan has already conducted its public hearing on the Developer's conditional use request relative to the development in Uwchlan. You did not represent Uwchlan in that hearing. You state that another attorney in the Firm's Municipal Law Department is handling the matter of the Developer's conditional use application for Uwchlan, and that you do not represent Uwchlan in that matter. Upper Uwchlan scheduled its public hearing on the conditional use approval requested for the Upper Uwchlan portion of the development for January 8, 2008. You state that you expect to publicly consider and act as a voting member of the Upper Uwchlan Board of Supervisors on the Developer's request for conditional use approval from Upper Uwchlan, but that you will refrain from participating in the proceedings in Upper Uwchlan pending the issuance of an advisory to you. You state that there could be no pecuniary benefit to the Firm from your participation as a Supervisor of Upper Uwchlan in the public hearing or the public discussion, or from your vote on the Developer's request for conditional use approval. You further state that regardless of your role in Upper Uwchlan, the conditional use process will proceed in Uwchlan. Based upon the above submitted facts, you ask whether the Ethics Act would permit you, in your capacity as a Supervisor of Upper Uwchlan, to vote on the Developer's request for conditional use approval for the Upper Uwchlan portion of the Property. 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. Upon taking office as a Supervisor of Upper Uwchlan, you would become 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 Donatelli, 08 -514 February 7, 2008 Page 3 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 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. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 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. Donatelli, 08 -514 February 7, 2008 Page 4 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, it is noted that Section 1103(a) of the Ethics Act pertaining to conflicts of interests does not prohibit public officials /public employees from having outside business activities or employment; however, the public official /public employee may not use the authority of his public position - -or confidential information obtained by being in that position - -for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. Examples of conduct that would be prohibited under Section 1103(a) would include: (1) the pursuit of a private business opportunity in the course of public action, Metrick, Order 1037; (2) the use of governmental facilities, such as governmental telephones, postage, staff, equipment, research materials, or other property, or the use of governmental personnel, to conduct private business activities, Freind, Order 800; Pancoe, supra; and (3) the participation in an official capacity as to matters involving the business with which the public official /public employee is associated in his private capacity or private clients(s). Miller, Opinion 89- 024; Kannebecker, Opinion 92 -010. If a business with which the public official /public employee is associated or a private customer /client would have a matter pending before the governmental body, the public official /public employee would generally have a conflict of interest as to such matter. Kannebecker, supra; Miller, supra. A reasonable and legitimate expectation that a business relationship will form may also support a finding of a conflict of interest. Amato, Opinion 89 -002. In applying the above provisions of the Ethics Act to the instant matter, you are advised that the Firm is a business with which ou are associated in your capacity as an attorney with the Firm. See, Kannebecker, supra; Miller, supra. Pursuant to Section 1103(a) of the Ethics Act, in your public capacity asSTApervisor, you would generally have a conflict of interest in matters that would financially impact you, the Firm, or the Firm's client(s). In each instance of a conflict of interest, you would be required to abstain fully from participation. The abstention requirement would not be limited to voting, but rather, would extend to any use of authority of office. In the event of a voting conflict, you would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Turning to your specific inquiry, you are advised that Section 1103(a) of the Ethics Act would not prohibit you from voting or otherwise participating as to the Developer's request for conditional use approval for that part of the Property that lies in Upper Uwchlan, subject to the condition that your actions as a Supervisor could not financially impact you, the Firm, or the Firm's client(s). Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the Second Class Township Code or the Rules of Professional Conduct. Donatelli, 08 -514 February 7, 2008 Page 5 Conclusion: Upon taking office as a Supervisor for Upper Uwchlan Township ("Upper Uwchlan "), you would become a "public official" subject to the provisions of the Public Official and m loyee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. The law firm of Lamb McErlane P.C. ( "the Firm') is a business with which you are associated in your capacity as an attorney with the Firm. Pursuant to Section 1103(a) of the Ethics Act, in your public capacity as a Supervisor, you would generally have a conflict of interest in matters that would financially impact you, the Firm, or the Firm's client(s). In each instance of a conflict of interest, you would be required to abstain fully from participation. The abstention requirement would not be limited to voting, but rather, would extend to any use of authority of office. In the event of a voting conflict, you would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Under the submitted facts, which include that: (1) a real estate developer ( "the Developer") owns a piece of property ("the Property ") that lies in both Upper Uwchlan and Uwchlan Township ( "Uwchlan "); (2) the Firm is Solicitor for Uwchlan; (3) in recent years, you have been the Firm attorney primarily responsible for providing services to Uwchlan; (4) the Developer has filed requests for conditional use approvals in both Townships; (5) Uwchlan has already conducted its public hearing on the Developer's conditional use request; and (6) another attorney in the Firm is handling the matter of the Developer's conditional use application for Uwchlan, you are advised as follows. In your capacity as a Supervisor for Upper Uwchlan, Section 1103(a) of the Ethics Act would not prohibit you from voting or otherwise participating as to the Developer's request for conditional use approval for that portion of the Property that lies in Upper Uwchlan, subject to the condition that your actions as a Supervisor could not financially impact you, the Firm, or the Firm's client(s). 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