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HomeMy WebLinkAbout08-523 DavisWalton V. Davis, Esquire 301 Ridge Avenue Gettysburg, PA 17325 Dear Mr. Davis: ADVICE OF COUNSEL March 10, 2008 08 -523 This responds to your letters of February 5, 2008, and February 6, 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 is employed by a surveying firm in which her brother is the principal, with regard to voting on subdivision and land development plans submitted to the township by the aforesaid surveying firm. Facts: As Solicitor for Straban Township ( "Township "), located in Adams County, Pennsylvania, you have been authorized by Sharon Hamm ( "Ms. Hamm "), a newly - elected Township Supervisor, to request an advisory from the Pennsylvania State Ethics Commission on her behalf. You have submitted facts that may be fairly summarized as follows. The Township is a second class township that is governed by a three - member Board of Supervisors ( "Board "). Ms. Hamm is a part -time employee of a surveying firm named "Adams County Surveyors" (hereinafter referred to as the Firm "). Ms. Hamm's brother is the principal of the Firm. You state that the Firm prepares and presents subdivision and land development plans to the Township for review and approval. Pursuant to the Municipalities Planning Code, the Board takes final action on such plans submitted by the Firm by approving the plans, denying the plans, or approving the plans subject to additional requirements being met. You state that it has been represented to the Township that at no time has any compensation paid to the Firm ever been contingent upon, or otherwise based upon, Davis, 08 -523 March 10, 2008 Page 2 approval of any plan submitted to the Township. You state that the priced charged to a Firm client is the same whether a plan is approved or disapproved. You further state that it has been represented to the Township that the plans the Firm will submit will never be subject to a price or fee dependent upon whether such plans are approved. Based upon the above submitted facts, you ask whether the Ethics Act would prohibit Ms. Hamm from voting on subdivision and land development plans submitted by the Firm to the Township. 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 Township Supervisor, Ms. Hamm 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 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: Davis, 08 -523 March 10, 2008 Page 3 § 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. "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. 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. Davis, 08 -523 March 10, 2008 Page 4 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 or immediate family member 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 each instance of a conflict of interest, the public official /public employee would be required to abstain fully from participation and in the instance of a voting conflict, to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. In applying the above provisions of the Ethics Act to the instant matter, you are advised that Ms. Hamm's brother is a member of her "immediate family" as that term is defined in the Ethics Act. The Firm is a business with which Ms. Hamm is associated in her capacity as an employee of the Firm and with which Ms. Hamm's brother is associated in his capacity as the principal of the Firm. Pursuant to Section 1103(a) of the Ethics Act, in her public capacity as a Township Supervisor, ervisor, Ms. Hamm would generally have a conflict of interest in matters that would impact her, her brother, the Firm, or the Firm's customer(s) /client(s). See, Kannebecker, supra; Miller, supra. Ms. Hamm would specifically have a conflict of interest under Section 1103(a) of the Ethics Act in matters before the Board pertaining to subdivision and land development plans submitted to the Township by the Firm. The fact that the Firm's client(s) would be financially impacted by the Board's final action as to such plans would form the basis for a conflict of interest. In each instance of a conflict of interest, Ms. Hamm would be required to abstain fully from participation and in the instance of a voting conflict, to 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 Supervisor for Straban Township ( "Township "), located in Adams County, Pennsylvania, Sharon Hamm ( "Ms. Hamm ") 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. Ms. Hamm's brother is a member of her "immediate family" as that term is defined in the Ethics Act. Adams County Surveyors ( "the Firm ") is a business with which Ms. Hamm is associated in her capacity as an employee of the Firm and with which Ms. Hamm's brother is associated in his capacity as the principal of the Firm. Pursuant to Section 1103(a) of the Ethics Act, in her public capacity as a Township Supervisor, Ms. Hamm would generally have a conflict of interest in matters that would Davis, 08 -523 March 10, 2008 Page 5 financially impact her, her brother, the Firm, or the Firm's customer(s)/client(s). Ms. Hamm would specifically have a conflict of interest under Section 110 (a) of the Ethics Act in matters before the Township Board of Supervisors ( "Board') pertaining to subdivision and land development plans submitted to the Township by the Firm. In each instance of a conflict of interest, Ms. Hamm would be required to abstain fully from participation and in the instance of a voting conflict, 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 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