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HomeMy WebLinkAbout08-581 WolfFrederick S. Wolf, Esquire Henry & Beaver, LLP 937 Willow Street P.O. Box 1140 Lebanon, PA 17042 -1140 Dear Mr. Wolf: ADVICE OF COUNSEL October 6, 2008 08 -581 This responds to your letters of August 21, 2008, and August 28, 2008, by which you requested advice from the Pennsylvania 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 borough council member with regard to voting or otherwise participating in his or her official capacity with regard to the proposed rezoning of a portion of the borough from residential to commercial, where: (1) the borough council member resides in the portion of the borough that is to be consi for rezoning; and (2) such rezoning could affect the value of the borough council member's real estate. Facts: As Solicitor for the Borough of Cleona ( "Borough "), located in Lebanon ounty, Pennsylvania, you have been authorized by Borough Council Members Steve Harclerode ( "Mr. Harclerode ") and Ellen Burke ( "Ms. Burke") to request an advisory from the Pennsylvania State Ethics Commission on their behalf, based upon the following submitted facts. You state that Borough Council is considering rezoning a portion of the Borough from residential to commercial. Mr. Harclerode and Ms. Burke reside in the zoning district that is to be considered for rezoning. You state that such rezoning could increase or decrease the value of Mr. Harclerode's and Ms. Burke's real estate depending upon the circumstances of development on or surrounding their real estate. Based upon the above submitted facts, you ask whether Mr. Harclerode and Ms. Burke would have a conflict of interest with regard to voting or otherwise participating in their official capacities with regard to the aforesaid proposed rezoning. 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 Wolf, 08 -581 October 6, 2008 Page 2 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 Borough Council Members, Mr. Harclerode and Ms. Burke are public officials 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 related to Section 1103(a) 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 Wolf, 08 -581 October 6, 2008 Page 3 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 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. Wolf, 08 -581 October 6, 2008 Page 4 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. Harclerode and Ms. Burke would each generally have a conflict of interest in matters before Borough Council that would financially impact him /her, a member of his /her immediate family, or a business with which he /she or a member of his /her immediate family is associated. Based upon the submitted fact that Mr. Harclerode and Ms. Burke own real estate located in the zoning district that is to be considered for rezoning from residential to commercial, Mr. Harclerode and Ms. Burke would each have a conflict of interest under Section 1103(a) of the Ethics Act in matters pertaining to such proposed rezoning unless the class/subclass exclusion would be applicable. In the instant matter, the submitted facts do not enable a conclusive determination as to whether Mr. Harclerode or Ms. Burke would be a member of an appropriate subclass or whether Mr. Harclerode or Ms. Burke would be affected by the proposed rezoning of the aforesaid zoning district "to the same degree" as other members of such a subclass. Accordingly, you are generally advised that as to each of the aforesaid Borough Council Members (that is, Mr. Harclerode or Ms. Burke), in order for the class /subclass exclusion to apply, there would have to be at least one other owner of real estate in the zoning district to be considered for rezoning: (1) who would be similarly situated to the Borough Council Member as the result of relevant shared characteristics, so as to qualify with the Borough Council Member as a member of a subclass; and (2) who would be reasonably affected to the same degree as the Borough Council Member would be affected by the Borough Council's action as to such matter. Kablack, supra. In each instance of a conflict of interest, the Borough Council Member(s) with the conflict 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, the Borough Council Member(s) with a conflict would be required to abstain fully and 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 Borough Code. Conclusion: As Members of Council for the Borough of Cleona ( "Borough "), located in Lebanon County, Pennsylvania, Steve Harclerode ( "Mr. Harclerode ") and Ellen Burke ( "Ms. Burke ") are public officials 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. Harclerode and Ms. Burke would each generally have a conflict of interest in matters before Borough Council that would financially impact him /her, a member of his /her immediate family, or a business with which he /she or a member of his /her immediate family is associated. Based upon the submitted fact that Mr. Harclerode and Ms. Burke own real estate located in a zoning district that is to be considered by the Borough Council for rezoning from residential to commercial, Mr. Harclerode and Ms. Burke would each have a conflict of interest under Section 1103(a) of the Ethics Act in matters pertaining to such proposed rezoning unless the class /subclass exclusion would be applicable. The submitted facts do not enable a conclusive determination as to whether Mr. Harclerode or Ms. Burke would be a member of an appropriate subclass or whether Mr. Harclerode or Ms. Burke would be affected by the proposed rezoning of the aforesaid zoning district "to the same degree" as other members of such a subclass. As to each of the aforesaid Borough Council Members (that is, Mr. Harclerode or Ms. Burke), in order for the class /subclass exclusion to apply, there would have to be at least one other owner of real estate in the zoning district to be considered for rezoning: (1) who would be similarly situated to the Borough Council Member as the result of relevant shared characteristics, so as to qualify with the Borough Council Member as a member of a subclass; and (2) who Wolf, 08 -581 October 6, 2008 Page 5 would be reasonably affected to the same degree as the Borough Council Member would be affected by the Borough Council's action as to such matter. In each instance of a conflict of interest, the Borough Council Member(s) with the conflict 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. 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