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HomeMy WebLinkAbout09-531 ElefanteMrs. Amanda Elefante 10 Riverstone Circle New Hope, PA 18938 Dear Mrs. Elefante: ADVICE OF COUNSEL March 27, 2009 09 -531 This responds to your letter dated February 3, 2009 (postmarked February 9, 2009, and received February 11, 2009), 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 school director with regard to participating in her official capacity as to the proposed use(s) of a property owned by the school district, when: (1) the school director's private property is adjacent to the school district's property; and (2) such proposed use(s) could affect the value of the school director's private property. Facts: As a School Director for the New Hope - Solebury School District ( "School District "), you request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. You own a home in a development ( "the Development "). Your property in the Development is adjacent to property ("the Property ") that the School District owns in the Borough of New Hope ( "the Borough "). The Facilities Committee of the School District School Board ( "School Board ") has recently begun public discussion about constructing a turf field ( "the Turf Field ") on the Property for the benefit of the School District, the Borough, and Solebury Township ( "the Township "), a neighboring municipality. You and neighboring property owners are concerned about the potential impact upon the quality of daily life and the potential for devaluation of your respective properties if the Turf Field would be built and then made available for non - School District use. Based upon the above submitted facts, you ask whether the potential impact of the School District's use of the Property upon the value of your adjacent property would form the basis of a conflict of interest for you under the Ethics Act, and if so, what legal parameters and voting restrictions you would be required to follow when attending meetings of the following entities: (1) the School Board, including regular meetings, Elefante, 09 -531 March 27, 2009 Page 2 Facilities Committee meetings and executive sessions pertaining to the School District's use of the Property; (2) the Borough Council; (3) the Township Board of Supervisors; and (4) the Development's homeowners association. 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 noted that, pursuant to the same aforesaid Sections of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), an opinion /advice may be given only as to prospective (future) conduct. To the extent that your inquiry relates to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent your inquiry relates to future conduct, your inquiry may and shall be addressed. As a School Director for the School District, you are a public official subject to the provisions of the Ethics Act. See, e.q., Quinn, Opinion 07 -014. 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. 65 Pa.C.S. §§ 1103(a), (j). (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. Elefante, 09 -531 March 27, 2009 Page 3 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 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. 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. 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 Elefante, 09 -531 March 27, 2009 Page 4 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 applying the above provisions of the Ethics Act to the instant matter, you are advised that unless the de minimis exclusion or the class /subclass exclusion would be applicable, in your public capacity as a School Director, you would have a conflict of interest in matters that would financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. In each instance of a conflict of interest, you 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, you would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Your specific questions shall now be addressed. If the School District's proposed use(s) of the Property would affect the value of your property and such economic impact would not be de minimis, then pursuant to Section 1103(a) of the Ethics Act, in your capacity as a School Director, you would have a conflict of interest in matters pertaining to the School District's proposed use(s) of the Property, including but not limited to the construction of a Turf Field on the Property, unless the class /subclass exclusion would be applicable. In the instant matter, the submitted facts do not enable a conclusive determination as to whether the class /subclass exclusion would be applicable. You are generally advised that in order for the class /subclass exclusion to apply under the submitted facts, there would have to be an appropriate subclass that would include at least one other owner of property adjacent to the Property: (1) who would be similarly situated as the result of relevant shared characteristics; (2) who would not be a member of your immediate family and /or a co -owner of your property; and (3) who would be reasonably affected to the same degree by the School District's action as to such matter(s). Kablack, supra. To the extent that you would have a conflict of interest as to the School District's proposed use(s) of the Property, you would be prohibited from acting in your official capacity as a School Director as to such matter(s) at any entity's meeting(s), including but not limited to School Board meetings, Facilities Committee meetings, and School Board executive sessions. However, Section 1103(a) of the Ethics Act would not prohibit you from acting in your private capacity as a citizen in matters pertaining to the School District's proposed use(s) of the Property, including appearing before the School Board, other governmental bodies such as the Borough Council or the Township Board of Supervisors, or the Development's homeowners association, subject to the condition that your conduct /communications would clearly and unequivocally establish that you were acting in your private capacity rather than in your public capacity as a School Director. Cf., McKenna, Advice 08 -568; Confidential Advice, 08 -531; Braun, Advice 00- 633. Elefante, 09 -531 March 27, 2009 Page 5 The propriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the Public School Code or case law as to bias. Conclusion: As a School Director for the New Hope - Solebury School District a "School District"), you are a public official subject to the provisions of the Public Official nd Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Based upon the submitted facts that: (1) you own a home in a development ( "the Development "); (2) your property in the Development is adjacent to property ( "the Property ") that the School District owns in the Borough of New Hope ( "the Borough'); (3) the Facilities Committee of the School District School Board ( "School Board ") has recently begun public discussion about constructing a turf field ( "the Turf Field") on the Property for the benefit of the School District, the Borough, and Solebury Township (`the Township "), a neighboring municipality; and (4) you and neighboring property owners are concerned about the potential impact upon the quality of daily life and the potential for devaluation of your respective properties if the Turf Field would be built and then made available for non - School District use, you are advised as follows. If the School District's proposed use(s) of the Property would affect the value of your property and such economic impact would not be de minimis, then pursuant to Section 1103(a) of the Ethics Act, in your capacity as a School Director, you would have a conflict of interest in matters pertaining to the School District's proposed use(s) of the Property, including but not limited to the construction of a Turf Field on the Property, unless the class /subclass exclusion would be applicable. The submitted facts do not enable a conclusive determination as to whether the class /subclass exclusion would be applicable. In order for the class /subclass exclusion to apply under the submitted facts, there would have to be an appropriate subclass that would include at least one other owner of property adjacent to the Property: (1) who would be similarly situated as the result of relevant shared characteristics; (2) who would not be a member of your immediate family and /or a co -owner of your property; and (3) who would be reasonably affected to the same degree by the School District's action as to such matter(s). In each instance of a conflict of interest, you 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, you would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. To the extent that you would have a conflict of interest as to the School District's proposed use(s) of the Property, you would be prohibited from acting in your official capacity as a School Director as to such matter(s) at any entity's meeting(s), including but not limited to School Board meetings, Facilities Committee meetings, and School Board executive sessions. However, Section 1103(a) of the Ethics Act would not prohibit you from acting in your private capacity as a citizen in matters pertaining to the School District's proposed use(s) of the Property, including appearing before the School Board, other governmental bodies such as the Borough Council or the Township Board of Supervisors, or the Development's homeowners association, subject to the condition that your conduct /communications would clearly and unequivocally establish that you were acting in your private capacity rather than in your public capacity as a School Director. 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. Elefante, 09 -531 March 27, 2009 Page 6 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