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HomeMy WebLinkAbout10-570 REISS ADVICE OF COUNSEL April 13, 2010 Jonathan J. Reiss, Esquire Grim, Biehn & Thatcher 104 S. Sixth Street P.O. Box 215 Perkasie, PA 18944-0215 10-570 Dear Mr. Reiss: This responds to your letter dated February 18, 2010, 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.C.S. § 1101 et seq., would impose any prohibitions or restrictions upon a member and chairperson (“the Public Official”) of a township board of supervisors with regard to participating in matters pertaining to a landfill located within the township, where: (1) the Public Official’s residence shares a corner with land owned by the landfill, which land is in a zoning set back zone and cannot currently be used for landfill purposes; (2) the Public Official was one of ten individuals who considered themselves to be part of a citizens group (“Citizens Group”) and who were plaintiffs in a lawsuit against the then- sitting board of supervisors, which lawsuit involved an issue regarding the Sunshine Act; (3) the aforesaid lawsuit has been decided beyond appeal and is no longer at issue; (4) individual members of the Citizens Group are currently proceeding with four separate challenges (“the Legal Matters”) pending before the county court of common pleas or the township zoning hearing board as to township decisions pertaining to the landfill; (5) the Public Official is not a named party to any of the Legal Matters; and (6) the Public Official has stated that since he took office, he no longer considers himself to be a member of the Citizens Group, and that he will not participate in any meetings of the Citizens Group. Facts: As Solicitor for Williams Township (“the Township”), you request an advisory from the Pennsylvania State Ethics Commission on behalf of George Washburn (“Mr. Washburn”), who is a Member and Chairperson of the Township Board of Supervisors (hereinafter also referred to as “the Board”). You have submitted facts, the material portion of which may be fairly summarized as follows. Mr. Washburn was initially elected to the Board in the fall of 2009. The Board consists of three Members. Reiss, 10-570 April 13, 2010 Page 2 The Chrin Brothers Landfill (“the Landfill”) is located within the Township. You state that Mr. Washburn has lived in the Township since 1986 and that his residence shares a corner with land (“the Land”) owned by the Landfill. You state that the Land is in a zoning set back zone and cannot currently be used for landfill purposes. You state that Mr. Washburn has been in vocal opposition to operations and expansions of the Landfill. In particular, Mr. Washburn was one of ten individuals who considered themselves to be part of a group called “Citizens to Save Williams Township” (“CSWT”). The aforesaid ten individuals were plaintiffs (“the Plaintiffs”) in a lawsuit (“the Lawsuit”) against the then-sitting Board, which Lawsuit involved an issue regarding the Sunshine Act. You state that the Lawsuit has been decided beyond appeal and is no longer at issue. You further state that Mr. Washburn contributed money for the Plaintiffs’ legal costs in the Lawsuit. You state that CSWT is not incorporated or registered with the Pennsylvania Department of State. You further state that CSWT does not have by-laws or any formal structure, and that in essence, it is a name that a group of people coined and use. You state that individual members of CSWT are currently proceeding with four separate challenges (“the Legal Proceedings”) to Township decisions pertaining to the Landfill. Three of the Legal Proceedings are pending before the Northampton County Court of Common Pleas, and these matters involve: (1) a mandamus action against the Township Treasurer to require the Township Treasurer to collect a business privilege tax from the Landfill operator; (2) a procedural challenge to the adoption of a Solid Waste Zoning District; and (3) an appeal from a Preliminary Land Development Plan to allow for the expansion of the Landfill. The fourth Legal Proceeding is pending before the Township Zoning Hearing Board and involves a substantive challenge to the Solid Waste Zoning District. You state that Mr. Washburn is not a named party to any of the Legal Proceedings. Mr. Washburn has stated that since he took office, he no longer considers himself to be a member of CSWT, and that he will not participate in any meetings of CSWT. You state that at a special public meeting of the Board during the first week of February 2010, a member of the audience asked Mr. Washburn if he would recuse himself from any matters before the Board that would involve the Landfill. Based upon the above submitted facts, you ask whether the Ethics Act would impose any prohibitions or restrictions upon Mr. Washburn with regard to participating in matter(s) involving the Landfill at a public meeting or executive session of the Board. 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 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 Member and Chairperson of the Township Board of Supervisors, Mr. Washburn is a public official as that term is defined in the Ethics Act, and therefore he is subject to the provisions of the Ethics Act. Reiss, 10-570 April 13, 2010 Page 3 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 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 Reiss, 10-570 April 13, 2010 Page 4 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, the public official/public employee would be required to abstain fully from participation. The abstention requirement would not be limited merely to voting, but would extend 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. Subject to certain statutory exceptions, 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 response to your specific question, you are advised that Section 1103(a) of the Ethics Act would not prohibit Mr. Washburn, in his capacity as a Member and Chairperson of the Board, from participating in matter(s) involving the Landfill at a public meeting or executive session of the Board, where: (1) Mr. Washburn would have no involvement or connection with CSWT; (2) Mr. Washburn would not, in a private capacity, be an adverse party in any legal action(s) against or involving the Landfill and/or the Landfill’s operator; and (3) there would be no private pecuniary benefit to Mr. Washburn, a member of his immediate family, or a business with which he or a member of his immediate family is associated (such as with respect to Mr. Washburn’s property abutting the Land). Cf., DeLano, Opinion 88-008; Hiscott-Barrett/Fera, Advice 06-517; Eckhart, Advice 04-550. The propriety 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 or case law as to bias. Conclusion: As a Member and Chairperson of the Williams Township (“the Township”) Board of Supervisors (“Board”), George Washburn (“Mr. Washburn”) 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. Based upon the submitted facts that: (1) Mr. Washburn was initially elected to the Board in the fall of 2009; (2) the Chrin Brothers Landfill (“the Landfill”) is located within the Township; (3) Mr. Washburn has lived in the Township since 1986, and his residence shares a corner with land (“the Land”) owned by the Landfill; (4) the Land is in a zoning set back zone and cannot currently be used for landfill purposes; (5) Mr. Washburn was one of ten individuals who considered themselves to be part of a group called “Citizens to Save Williams Township” (“CSWT”); (6) the aforesaid ten individuals were plaintiffs (“the Plaintiffs”) in a lawsuit (“the Lawsuit”) against the then-sitting Board, which Lawsuit involved an issue regarding the Sunshine Act; (7) the Lawsuit has been decided beyond appeal and is no longer at issue; (8) individual members of CSWT are currently proceeding with four separate challenges (“the Legal Proceedings”) to Township decisions pertaining to the Landfill; (9) three of the Legal Proceedings are pending before the Northampton County Court of Common Pleas, and the fourth Legal Proceeding is pending before the Township Zoning Hearing Board; (10) Mr. Washburn is not a named party to any of the Legal Proceedings; and (11) Mr. Washburn has stated that since he took office, he no longer Reiss, 10-570 April 13, 2010 Page 5 considers himself to be a member of CSWT, and that he will not participate in any meetings of CSWT, you are advised as follows. Section 1103(a) of the Ethics Act would not prohibit Mr. Washburn, in his capacity as a Member and Chairperson of the Board, from participating in matter(s) involving the Landfill at a public meeting or executive session of the Board, where: (1) Mr. Washburn would have no involvement or connection with CSWT; (2) Mr. Washburn would not, in a private capacity, be an adverse party in any legal action(s) against or involving the Landfill and/or the Landfill’s operator; and (3) there would be no private pecuniary benefit to Mr. Washburn, a member of his immediate family, or a business with which he or a member of his immediate family is associated (such as with respect to Mr. Washburn’s property abutting the Land). 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