HomeMy WebLinkAbout08-519 BEARDRonald T. Tomasko, Esquire
Mette, Evans & Woodside
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110 -0950
Dear Mr. Tomasko:
ADVICE OF COUNSEL
February 26, 2008
08 -519
This responds to your letters of December 31, 2007, January 7, 2008, and
January 24, 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 impose any prohibitions or restrictions upon a township
supervisor in matters involving the zoning of a tract of land that includes a proposed
parcel the supervisor is interested in purchasing.
Facts: As Solicitor for Hamilton Township ( "Township "), located in Adams
ounty, Pennsylvania, you request an advisory from the State Ethics Commission on
behalf of Timothy D. Beard, III ( "Mr. Beard "), a Member and Vice Chairman of the
Township Board of Supervisors. You have submitted facts that may be fairly
summarized as follows.
The Estate of Anna Wolf ( "Estate ") owns an eighty -acre tract of land ( "the
Property ") located within the Township. The Property is located in an area zoned as
"AP — Agricultural Preservation."
The Estate has filed a lawsuit against the Township Zoning Hearing Board
( "ZHB ") alleging that the ZHB abused its discretion and /or committed an error of law
when it denied the Estate's request for a zoning variance to subdivide the Property.
You state that the Estate has requested that the Township Board of Supervisors
intervene in the aforesaid litigation in an effort to compel the ZHB to settle the dispute.
You state that if the Estate would be permitted to subdivide the Property, Mr.
Beard would be interested in purchasing one of the proposed subdivided parcels.
You have submitted copies of the following documents pertaining to the aforesaid
dispute: (1) a letter dated November 20, 2007, from John Wolf and Clay Roche,
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February 26, 2008
Page 2
executors of the Estate, to the Township Supervisors, in which Mr. Wolf and Mr. Roche
ask to meet with the Township Supervisors to discuss the proposed subdivision of the
Property; (2) an unexecuted settlement agreement, which indicates that the requested
use variance would permit the Estate to subdivide the Property into four tracts
consisting of approximately 15 to 25 acres each; and (3) a letter dated December 3,
2007, from Chester G. Schultz, Esquire, to Stephanie Egger, Chair of the Board of
Supervisors, which suggests that the Board's authority as to the litigation would be
limited to seeking to intervene in order to assert the position of the Township, and that
one Supervisor might have a conflict of interest in the matter.
In addition to the above, you note that the Township will be revisiting some of its
zoning ordinances for possible revision in 2008.
Based upon the above submitted facts, you request an advisory as to whether
Mr. Beard would have a conflict of interest under the Ethics Act with regard to the
aforesaid land use dispute or with regard to discussions or actions of the Board of
Supervisors relating to revisions to the Township's zoning ordinances that would impact
the Township's "AP — Agricultural Preservation" Zone.
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.
As a Member and Vice Chairman of the Township Board of Supervisors, Mr.
Beard 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
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
Tomasko, 08 -519
February 26, 2008
Page 3
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.
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.
The above statutory definition of "conflict" or "conflict of interest" contains 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.
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
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February 26, 2008
Page 4
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
reasonably affected to the same degree by the proposed action. Kablack, supra.
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 addition, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no
person shall offer or give to a public official /public employee anything of monetary value
and no public official /public employee shall solicit or accept anything of monetary value
based upon an understanding that the vote, official action, or judgment of the public
official /public employee would be influenced thereby. Reference is made to these
provisions of the law not to imply that there has been or will be any transgression
thereof but merely to provide a complete response to the question presented.
In applying the above provisions of the Ethics Act to the instant matter, you are
advised that pursuant to Section 1103(a) of the Ethics Act, Mr. Beard would generally
have a conflict of interest in matters before the Township Board of Supervisors that
would financially benefit him, a member of his immediate family, or a business with
which he or a member of his immediate family is associated. In each instance of a
conflict of interest, Mr. Beard 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, Mr. Beard would be required
to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the
Ethics Act.
In response to your specific inquiries, you are advised as follows.
Although the submitted facts indicate that if the Property would be subdivided,
Mr. Beard would be interested in purchasing a proposed subdivided parcel, there is no
indication in the submitted facts of whether any "private pecuniary benefit" would result
to Mr. Beard through the purchase of such a proposed subdivided parcel. There is no
indication in the submitted facts of whether such a purchase would occur under
commercially reasonable terms or whether the purchase price would be for fair market
value.
Under the limited submitted facts, you are advised that Mr. Beard would not have
a conflict of interest in matters pertaining to the land use dispute as to the Property
subject to the conditions that: (1) Mr. Beard would not receive any private pecuniary
benefit as a result of his purchase of a subdivided parcel of the Property; and (2) there
would be no other basis for a conflict of interest under the Ethics Act.
Tomasko, 08 -519
February 26, 2008
Page 5
The submitted facts are insufficient to enable a conclusive determination as to
whether Mr. Beard would have a conflict of interest with regard to discussions or actions
of the Board of Supervisors relating to revisions to the Township's zoning ordinances
that would impact the Township's "AP - Agricultural Preservation" Zone. Therefore, only
the following general guidance may be given in that regard.
If revisions to the Township's zoning ordinances would be reasonably anticipated
to financially impact Mr. Beard, a member of his immediate family, or a business with
which he or a member of his immediate family is associated, then Mr. Beard would have
a conflict of interest as to such matters unless the de minimis exclusion or the
class /subclass exclusion would be applicable. In each instance of a conflict of interest,
Mr. Beard would be required to abstain from participation and, in the instance of a
voting conflict, to fully satisfy the disclosure requirements of Section 1103(j) of the
Ethics Act.
The ropriety of the proposed conduct has only been addressed under the Ethics
Act. Specifically not addressed herein is the applicability of the Second Class Township
Code.
Conclusion: As a Member and Vice Chairman of the Board of Supervisors of
Hamilton Township ( "Township "), Timothy D. Beard, III ( "Mr. Beard ") 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. Pursuant to Section 1103(a) of the Ethics Act, Mr. Beard would
generally have a conflict of interest in matters before the Township Board of
Supervisors that would financially benefit him, a member of his immediate family, or a
business with which he or a member of his immediate family is associated. Under the
submitted facts that: (1) the Estate of Anna Wolf ( "Estate ") owns an eighty -acre tract of
land ( "the Property ") located within the Township in an area zoned as "AP — Agricultural
Preservation "; (2) the Estate has filed a lawsuit against the Township Zoning Hearing
Board ( "ZHB ") alleging that the ZHB abused its discretion and /or committed an error of
law when it denied the Estate's request for a zoning variance to subdivide the Property;
(3) the Estate has requested that the Township Board of Supervisors intervene in the
aforesaid litigation in an effort to compel the ZHB to settle the dispute; (4) the requested
use variance would permit the Estate to subdivide the Property into four tracts of
approximately 15 to 25 acres each; (5) if the Estate would be permitted to subdivide the
Property, Mr. Beard would be interested in purchasing one of the proposed subdivided
parcels; and (6) the Township will be revisiting some of its zoning ordinances for
possible revision in 2008, you are advised as follows. Mr. Beard would not have a
conflict of interest in matters pertaining to the land use dispute as to the Property
subject to the conditions that: (1) Mr. Beard would not receive any private pecuniary
benefit as a result of his urchase of a subdivided parcel of the Property; and (2) there
would be no other basis for a conflict of interest under the Ethics Act. If revisions to the
Township's zoning ordinances would be reasonably anticipated to financially impact Mr.
Beard, a member of his immediate family, or a business with which he or a member of
his immediate family is associated, then Mr. Beard would have a conflict of interest as to
such matters unless the de minimis exclusion or the class /subclass exclusion as set
forth within the definition of "conflict" or "conflict of interest" would be applicable. In
each instance of a conflict of interest, Mr. Beard would be required to abstain from
participation and, in the instance of a voting conflict, 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
Tomasko, 08 -519
February 26, 2008
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