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HomeMy WebLinkAbout08-552 ClearyADVICE OF COUNSEL Josele Cleary, Esquire Morgan, Hallgren, Crosswell & Kane, P.C. P.O. Box 4686 Lancaster, PA 17604 -4686 May 14, 2008 08 -552 Dear Ms. Cleary: This responds to your letter dated April 4, 2008, by which you requested an advisory from the Pennsylvania 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 commissioner with regard to participating in the hearings and vote on a real estate developer's application for conditional use approval to develop a residential development in the township, where: (1) the township commissioner owns and resides at a single family dwelling located on the street that runs parallel to the roughly southeastern boundary of the proposed development; (2) the township commissioner's dwelling adjoins an area designated as open space on the master development plan for the proposed development; (3) the township commissioner's lot is of the same dimensions as thirty -one of the thirty -three lots fronting on the same street and directly adjoining the proposed development; and (4) the township commissioner's dwelling is comparable to the other single family dwellings located on the same street. Facts: As the legal representative of Kenneth M. Silberstein ( "Mr. Silberstein "), you have been authorized to request an advisory from the Pennsylvania State Ethics Commission on his behalf. You have submitted extensive facts that may be fairly summarized as follows. Mr. Silberstein is an elected member of the Board of Commissioners ( "Board ") of York Township ( "Township "), a first class township located in York County, Pennsylvania. Mr. Silberstein took office in January 2008. You state that a developer, Matthew J. DeRose (hereinafter referred to as the Developer "), proposes to convert an existing golf course (hereinafter referred to as the Property ") into a "traditional neighborhood development" to be named the Village at Heritage Hills" (hereinafter referred to as the Development "). The Development would contain residential dwellings, commercial /retail space, and open space. Cleary 08 -552 May 14, 2008 Page 2 You have submitted a copy of a document entitled "Project Overview," which you state is part of a booklet entitled `The Village at Heritage Hills Traditional Neighborhood Development." You have also submitted a copy of the "Master Development Plan" for the Development. Both of the aforesaid documents are incorporated herein by reference. Per your submissions, approximately fourteen single family detached dwellings will adjoin open space on the north side of the Development. The Master Development Plan shows additional adjoining residences that are not single family detached dwellings. You state that the street that runs parallel to the roughly southeastern boundary of the proposed Development is Heritage Hills Drive. Mr. Silberstein owns and resides at a single family detached dwelling on Heritage Hills Drive, which you have identified in your submissions. Mr. Silberstein's dwelling adjoins an area designated as open space on the Master Development Plan. In the advisory request, you state that Mr. Silberstein's lot is of the same dimensions as thirty -one of the thirty -three lots fronting on Heritage Hills Drive and directly adjoining the Property. The advisory request asserts, without providing specific factual support, that Mr. Silberstein's dwelling is "comparable" to the other single family dwellings located on Heritage Hills Drive. In 2007, the Developer submitted to the Township an application for conditional use approval to develop the proposed Development. You note that both the Pennsylvania Municipalities Planning Code, 53 P.S. § 10101 et seq., and the Township Zoning Ordinance set forth the requirements for hearings on conditional use applications. After one hearing was held in 2007 on the Developer's conditional use application, the Developer granted a continuance to the Township. The hearings were scheduled to resume at the end of April 2008. You state that it is Mr. Silberstein's understanding that upon resumption of the hearings, the Developer could present a revised plan for the Development showing fewer proposed dwellings. You note that where a property is the subject of a conditional use application, the Township Zoning Ordinance requires that owners of properties located within 300 feet of such property be provided with notice of the date and time of the hearing. You further note that there are approximately 300 names on the list of landowners to be provided with notice as to the hearing on the Developer's application to develop the proposed Development. Mr. Silberstein is not a member of the golf course currently located on the Property. You state that Mr. Silberstein does not have any interest in the Property. You express your view that it is questionable whether any action by Mr. Silberstein in connection with the hearing on the Developer's conditional use application for the proposed Development would result in any pecuniary benefit to Mr. Silberstein. You state that the potential for change in the value of Mr. Silberstein's dwelling if the Development would proceed is at best speculative. You further state that Mr. Silberstein has not obtained before and after appraisals as to the value of his dwelling, and that he cannot reasonably do so at this time. You note that the form and density of the Development could be changed throughout the conditional use approval process and the subsequent subdivision and land development approval process. You further note that the caliber of the Developer's construction, the ultimate mix of tenants in the nonresidential areas, and other factors could affect the value of Mr. Silberstein's dwelling. Cleary 08 -552 May 14, 2008 Page 3 You state that the Township Solicitor has advised Mr. Silberstein that Mr. Silberstein's participation as a Commissioner relative to the Developer's conditional use application could constitute a conflict of interest. You further state that Mr. Silberstein did not request such advice from the Township Solicitor. Based upon the above submitted facts, you ask whether Mr. Silberstein would have a conflict of interest in his capacity as a Township Commissioner with regard to participating in the hearings and vote on the Developer's conditional use application for the proposed Development. 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 Commissioner, Mr. Silberstein 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: Cleary 08 -552 May 14, 2008 Page 4 § 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. In each instance of a conflict of interest, a public official /public employee 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 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. It is noted that 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 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 Cleary 08 -552 May 14, 2008 Page 5 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 applying Section 1103(a) of the Ethics Act to the facts that you have submitted, you are advised that pursuant to Section 1103(a) of the Ethics Act, Mr. Silberstein, in his capacity as a Township Commissioner, generally would have a conflict of interest in matters that would financially impact 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. Silberstein 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 each instance of a voting conflict, Mr. Silberstein 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 as follows. As noted above, advisories are issued based upon the facts submitted by the requester, and it is the burden of the requester to submit all of the material facts. Although it seems probable that as an owner of residential property adjoining the proposed Development, Mr. Silberstein would be financially impacted by the proposed Development in relation to the value of his property, the submitted facts do not include all of the material facts that would be necessary in order for this advisory to conclusively determine whether the class /subclass exclusion would be applicable. You have stated that Mr. Silberstein has not obtained before and after appraisals of his dwelling, and that he cannot reasonably do so at this time. However, the practical difficulties that a requester may encounter in meeting the requester's obligation to submit all of the material facts do not constitute a basis for the advisory to disregard the lack of material facts. In the instant matter, the submitted facts do not indicate what the financial impact(s) would be upon Mr. Silberstein or other owners of residential property on Heritage Hills Drive if the Development would proceed. Therefore, this advisory must necessarily be limited to providing the following general guidance in response to your specific inquiry. To the extent that Mr. Silberstein, as the owner of residential property on Heritage Hills Drive, would be financially impacted by the proposed Development in relation to the value of his property, then pursuant to Section 1103(a) of the Ethics Act, Mr. Silberstein in his capacity as a Township Commissioner would have a conflict of interest with regard to participating in the hearings and vote on the Developer's conditional use application for the proposed Development unless the class /subclass exclusion would be applicable. In order for the class /subclass exclusion to be applicable, there would have to be at least one other owner of other residential property on Heritage Hills Drive who would be similarly situated to Mr. Silberstein as the result of relevant shared characteristics and who would be reasonably affected to the same degree by the proposed action as Mr. Silberstein. Cf., Kablack, supra. In each instance of a conflict of interest, Mr. Silberstein would be required to abstain fully from participation, and in the instance of a voting conflict, to abstain fully and satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Cleary 08 -552 May 14, 2008 Page 6 The propriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the First Class Township Code. Conclusion: As a Member of the Board of Commissioners of York Township ( "Township "), located in York County, Pennsylvania, Kenneth M. Silberstein 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. Silberstein, in his capacity as a Township Commissioner, generally would have a conflict of interest in matters that would financially impact him, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Based upon the submitted facts that: (1) a developer, Matthew J. DeRose hereinafter referred to as the Developer "), proposes to convert an existing golf course hereinafter referred to as the Property ") into a "traditional neighborhood development" to be named the Village at Heritage Hills" (hereinafter referred to as the Development "), which development would contain residential dwellings, commercial /retail space, and open space; (2) in 2007, the Developer submitted to the Township an application for conditional use approval to develop the proposed Development; (3) the street that runs parallel to the roughly southeastern boundary of the proposed Development is Heritage Hills Drive; (4) Mr. Silberstein owns and resides at a single family detached dwelling on Heritage Hills Drive; (5) Mr. Silberstein's dwelling adjoins an area designated as open space on the Master Development Plan for the Development; (6) Mr. Silberstein's lot is of the same dimensions as thirty -one of the thirty -three lots fronting on Heritage Hills Drive and directly adjoining the Property; (7) the advisory request asserts, without providing specific factual support, that Mr. Silberstein's dwelling is "comparable" to the other single family dwellings located on Heritage Hills Drive; and (8) the submitted facts do not indicate what the financial impact(s) would be upon Mr. Silberstein or other owners of residential property on Heritage Hills Drive if the Development would proceed, you are advised as follows. To the extent that Mr. Silberstein, as the owner of residential property on Heritage Hills Drive, would be financially impacted by the proposed Development in relation to the value of his property, then pursuant to Section 1103(a) of the Ethics Act, Mr. Silberstein in his capacity as a Township Commissioner would have a conflict of interest with regard to participating in the hearings and vote on the Developer's conditional use application for the proposed Development unless the class /subclass exclusion would be applicable. In order for the class /subclass exclusion to be applicable, there would have to be at least one other owner of other residential property on Heritage Hills Drive who would be similarly situated to Mr. Silberstein as the result of relevant shared characteristics and who would be reasonably affected to the same degree by the proposed action as Mr. Silberstein. In each instance of a conflict of interest, Mr. Silberstein would be required to abstain fully from participation, and in the instance of a voting conflict, to abstain fully and 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) of the Ethics Act, 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. Cleary 08 -552 May 14, 2008 Page 7 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