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HomeMy WebLinkAbout08-554 MCGLYNNShawn McGlynn ICC, BCO 305 Blue Mountain Dr. Treichlers, PA 18086 Dear Mr. McGlynn: ADVICE OF COUNSEL May 19, 2008 08 -554 This responds to your letter dated March 25, 2008, and your letter dated April 2, 2008, received April 11, 2008, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether as a member of a township planning commission, you would be considered a "public official" subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, and specifically Section 1103(a) of the Ethics Act pertaining to conflicts of interest. Facts: As a Member of a township planning commission, you request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. The township in which you reside ( "the Township ") has a five - member Board of Supervisors ( "the Board "). You state that following the submission of a resume and a public interview, you were appointed by the Board by a three -to -two vote to fill a vacancy on the Township Planning Commission ( "the Planning Commission "). You state that the Planning Commission "does not have the authority to expend public funds ... does not have the power of a political subdivision and does not have the authority to make binding decisions or rulings that are effective without Township approval." April 2, 2008, Advisory Request Letter of McGlynn, at paragraph 1 (Emphasis in the original). In your private capacity, you are an active participant in a civic group that you refer to as the "Concerned Residents of - - -- Township" (hereinafter referred to as `the Civic Group "). You state that your appointment to the Planning Commission has sparked controversy because two Township Supervisors who were newly elected in November 2007 were supported by the Civic Group during the election process. You state that your appointment to the Planning Commission has also sparked controversy because you are one of a group of residents appealing a decision by the McGlynn, 08 -554 May 19, 2008 Page 2 Board to grant conditional use approval of a specific land development application (hereinafter referred to as the Land Development Application") for a proposed project in the Township. You state that you have no financial involvement in the Land Development Application; you do not represent and are not involved with any entity that would financially gain from the ultimate approval or denial of the proposed project; and you are not an owner of property neighboring the site of the proposed project. You state, however, that you have been an outspoken critic of the proposed project due to what you perceive as numerous environmental issues and conflicts with the Township's Zoning Ordinance, Subdivision and Land Development Ordinance, and Comprehensive Plan. You note that per the Township's Zoning Ordinance, the Land Development Application requires first, conditional use approval from the Board, and second, land development approval from the Board under the Township Subdivision and Land Development Ordinance. You state that since the record is closed pertaining to the Board's conditional use approval of the Land Development Application and the appeal of the Board's action is pending before the County Court of Common Pleas, no further involvement by the Planning Commission is anticipated with respect to the "conditional use approval" step of the approval process for the Land Development Application. However, for the "land development approval" step of the approval process, the Land Development Application will be brought before the Planning Commission for review and approval prior to being presented to the Board. Based upon the above submitted facts, you ask the following questions: 1. If issues pertaining to the Land Development Application would come before the Planning Commission, whether you would have a conflict of interest with regard to being involved in discussions and /or voting on such issues, and whether you should recuse yourself and abstain from all participation as to such issues; 2. Whether it would be unethical for a Planning Commission Member to appeal a land use decision; and 3. Whether it was a conflict of interest for the Board to appoint you to the Planning Commission due to the mutual affiliation of you and two of the Supervisors with the Civic Group. 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. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an advisory may be given only to the person whose prospective conduct is in question, his authorized representative, or, when applicable, his appointing body or employer. To the extent that you have inquired as to the conduct of other Member(s) of the Planning Commission or Township Supervisor(s) without their express permission, you are considered a third party without legal standing. Therefore, this advisory must necessarily be limited to addressing only your prospective conduct. In responding to your inquiry, the threshold question to be addressed is whether, in your capacity as a Member of the Planning Commission, you would be considered a public official subject to the Ethics Act. McGlynn, 08 -554 May 19, 2008 Page 3 The Ethics Act defines the term "public official" as follows: § 1102. Definitions "Public official." Any person elected by the public or elected or appointed by a governmental body or an appointed official in the executive, legislative or judicial branch of this Commonwealth or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense or to otherwise exercise the power of the State or any political subdivision thereof. 65 Pa. C. S. § 1102. The regulations of the State Ethics Commission similarly define the term "public official" and set forth the following additional criteria: (i) The following criteria will be used to determine if the exception in this paragraph is applicable: (A) The body will be deemed to have the power to expend public funds if the body may commit funds or may otherwise make payment of monies, enter into contracts, invest funds held in reserves, make loans or grants, borrow money, issue bonds, employ staff, purchase, lease, acquire or sell real or personal property without the consent or approval of the governing body and the effect of the power to expend public funds has a greater than de minimis economic impact on the interest of a person. (B) The body will be deemed to have the authority to otherwise exercise the power of the Commonwealth or a political subdivision if one of the following exists: (1) The body makes binding decisions or orders adjudicating substantive issues which are appealable to a body or person other than the governing authority. (II) The body exercises a basic power of government and performs essential governmental functions. (III) The governing authority is bound by statute or ordinance to accept and enforce the rulings of the body. (IV) The body may compel the governing authority to act in accordance with the body's decisions or restrain the governing authority from acting contrary to the body's decisions. (V) The body makes independent decisions which are effective without approval of the governing authority. (VI) The body may adopt, amend and repeal resolutions, rules, regulations or ordinances. McGlynn, 08 -554 May 19, 2008 Page 4 (VII) The body has the power of eminent domain or condemnation. (VIII)The enabling legislation of the body indicates that the body is established for exercising public powers of the Commonwealth or a political subdivision. (ii) The term does not include judges and inspectors of elections, notary publics and political party officers. (iii) The term generally includes persons in the following offices: (A) Incumbents of offices filled by nomination of the Governor and confirmation of the Senate. (B) Heads of executive, legislative and independent agencies, boards and commissions. (C) Members of agencies, boards and commissions appointed by the General Assembly or its officers. (D) Persons appointed to positions designated as officers by the Commonwealth or its political subdivisions. (E) Members of municipal, industrial development, housing, parking and similar authorities. (F) Members of zoning hearing boards and similar quasi - judicial bodies. (G) Members of the public bodies meeting the criteria in paragraph (i)(A). 51 Pa. Code § 11.1. In applying the Ethics Act's definition of "public official," the first portion of the definition provides that a public official is a person who: (1) is elected by the public; (2) is elected or appointed by a governmental body; or (3) is an appointed official in the executive, legislative, or judicial branch of the Commonwealth or a political subdivision of the Commonwealth. Muscalus, Opinion 02 -007. The fact that you were appointed to the Planning Commission by the Board satisfies the first portion of the definition. As for the remainder of the definition, the necessary conclusion is that you would fall within the statutory exception for members of purely advisory boards lacking authority to expend public funds other than reimbursement for personal expense or to otherwise exercise the power of the State or a political subdivision. This conclusion is based upon your factual submissions that the Planning Commission "does not have the authority to expend public funds ... does not have the power of a political subdivision and does not have the authority to make binding decisions or rulings that are effective without Township approval." April 2, 2008, Advisory Request Letter of McGlynn, at paragraph 1 (Emphasis in the original). Therefore, based upon the submitted facts, the necessary conclusion is that in your capacity as a Member of the Planning Commission, you are not a "public official" as that term is defined in the Ethics Act. Cf., Peirce /Hess /Hollister /Oltmann, Advice 06- 501. McGlynn, 08 -554 May 19, 2008 Page 5 Section 1103(a) of the Ethics Act only applies to public officials and public employees: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa. C. S. § 1103(a). Because, in your capacity as a Member of the Planning Commission, you are not a "public official" as that term is defined in the Ethics Act, Section 1103(a) of the Ethics Act would not apply to restrict you in your capacity as a Member of the Planning Commission. Under the submitted facts, the only provisions of the Ethics Act that apply to you are Sections 1103(b) and 1103(c), which apply to everyone. For your information, 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. Turning to your first and second specific inquiries, you are advised that the Ethics Act would not prohibit you from being involved in discussions and /or voting on issues before the Planning Commission pertaining to the Land Development Application, or from appealing a land use decision of the Board. Your third specific inquiry cannot be addressed in this advisory because it does not pertain to your own prospective conduct. Lastly, the propriety of your proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the Second Class Township Code. Conclusion: Based upon the submitted facts that: (1) you are a Member of the planning commission ("the Planning Commission ") of the township in which you reside ( "the Township "); (2) the Planning Commission does not have the authority to expend public funds; and (3) the Planning Commission does not have the power of a political subdivision or the authority to make binding decisions or rulings that are effective without Township approval, you are advised that in your capacity as a Member of the Planning Commission, you are not a "public official" as that term is defined by the Public Official and Employee Ethics Act ( "Ethics Act "). Consequently, in your capacity as a Member of the Planning Commission, Section 1103(a) of the Ethics Act- -which prohibits public officials and public employees from engaging in conduct that constitutes a conflict of interest - -would not apply to you. Sections 1103(b) and 1103(c) of the Ethics Act apply to everyone. 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 McGlynn, 08 -554 May 19, 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