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HomeMy WebLinkAbout08-519 TOMASKORonald 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, Tomasko, 08 -519 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 Tomasko, 08 -519 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