Loading...
HomeMy WebLinkAbout11-548 Savona ADVICE OF COUNSEL September 22, 2011 Michael J. Savona, Esquire Friedman Schuman 101 Greenwood Avenue, Fifth Floor Jenkintown, PA 19046-2636 11-548 Dear Mr. Savona: This responds to your letters dated July 26, 2011, and August 10, 2011, 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 township supervisor with regard to voting on matter(s) pertaining to a proposed application for subdivision and land development approval related to the renovation and substantial expansion of a convenience store located in the township, when a son of the township supervisor is employed as an hourly staff member with the aforesaid convenience store. Facts: As Solicitor for Warminster Township (“Township”), located in Bucks County, Pennsylvania, you have been authorized by Township Supervisor Thomas E. Panzer, Esquire (“Mr. Panzer”) to request an advisory from the Pennsylvania State Ethics Commission on his behalf. You have submitted facts, the material portion of which may be fairly summarized as follows. An entity known as “County View Properties, LP” (“County View”) is developing a commercial parcel in the Township in conjunction with Wawa, Inc. (“Wawa”). County View proposes to file with the Township an application for subdivision and land development approval (hereinafter referred to as “Wawa Land Development Application”) with respect to the renovation and substantial expansion of a Wawa store located at the intersection of County Line Road and Davisville Road in the Township. The expansion would include the demolition of the existing Wawa store, the construction of a new 5,000 square foot store, and the addition of twelve fuel pumps on six islands. You state that it appears likely that the Wawa Land Development Application will require waivers from a number of provisions of the Township Subdivision and Land Development Ordinance, which would require approval by the Board, along with preliminary and final approval by the Board of the actual subdivision and land development plan. You state that the prospective applicants met with Township staff, the Township Engineer, and the Township Solicitor on one occasion with regard to the Wawa Land Development Application and subsequently appeared at a public meeting Savona, 11-548 September 22, 2011 Page 2 of the Township Board of Supervisors (“Board of Supervisors”) on July 14, 2011, to provide an informational presentation. You further state that Mr. Panzer has neither taken any action nor participated in any discussions regarding the Wawa Land Development Application. Mr. Panzer has a son who is employed by Wawa as an hourly staff member at the Wawa store which is proposed for expansion. You state that there has been no suggestion by Wawa that the existing Wawa store will close, downsize, or lay off employees if the proposed expansion is not approved by the Board of Supervisors. Based upon the above submitted facts, you ask whether Mr. Panzer would have a conflict of interest with regard to voting on any matter(s) pertaining to the Wawa Land Development Application. 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. If the activity in question has already occurred, the Commission may not issue an opinion/advice but any person may then submit a signed and sworn complaint, which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent 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 Township Supervisor, Mr. Panzer 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. 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 Savona, 11-548 September 22, 2011 Page 3 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 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. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self-employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 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 Savona, 11-548 September 22, 2011 Page 4 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 conflict of interest, a public official/public employee would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. In applying the above provisions of the Ethics Act to the instant matter, you are advised that Wawa is a business with which Mr. Panzer’s son is associated in his capacity as an employee. Mr. Panzer generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters before the Board of Supervisors that would financially impact him, his son, or Wawa. Subject to the statutory exclusions to the definition of “conflict” or “conflict of interest” as set forth in the Ethics Act, 65 Pa.C.S. § 1102, Mr. Panzer would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting on any matter(s) before the Board of Supervisors pertaining to the Wawa Land Development Application. In each instance of a conflict of interest, Mr. Panzer would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the Second Class Township Code. Conclusion: As a Supervisor for Westminster Township (“Township”), located in Bucks County, Pennsylvania, Thomas E. Panzer, Esquire (“Mr. Panzer”) 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) an entity known as “County View Properties, LP” (“County View”) is developing a commercial parcel in the Township in conjunction with Wawa, Inc. (“Wawa”); (2) County View proposes to file with the Township an application for subdivision and land development approval (hereinafter referred to as “Wawa Land Development Application”) with respect to the renovation and substantial expansion of a Wawa store located at the intersection of County Line Road and Davisville Road in the Township; (3) the expansion would include the demolition of the existing Wawa store, the construction of a new 5,000 square foot store, and the addition of twelve fuel pumps on six islands; (4) it appears likely that the Wawa Land Development Application will require waivers from a number of provisions of the Township Subdivision and Land Development Ordinance, which would require approval by the Board, along with preliminary and final approval by the Board of the actual subdivision and land development plan; (5) the prospective applicants met with Township staff, the Township Engineer, and the Township Solicitor on one occasion with regard to the Wawa Land Development Application and subsequently appeared at a public meeting of the Township Board of Supervisors (“Board of Supervisors”) on July 14, 2011, to provide an informational presentation; (6) Mr. Panzer has neither taken any action nor participated in any discussions regarding Savona, 11-548 September 22, 2011 Page 5 the Wawa Land Development Application; (7) Mr. Panzer has a son who is employed by Wawa as an hourly staff member at the Wawa store which is proposed for expansion; and (8) there has been no suggestion by Wawa that the existing Wawa store will close, downsize, or lay off employees if the proposed expansion is not approved by the Board of Supervisors, you are advised as follows. Wawa is a business with which Mr. Panzer’s son is associated in his capacity as an employee. Mr. Panzer generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters before the Board of Supervisors that would financially impact him, his son, or Wawa. Subject to the statutory exclusions to the definition of “conflict” or “conflict of interest” as set forth in the Ethics Act, 65 Pa.C.S. § 1102, Mr. Panzer would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting on any matter(s) before the Board of Supervisors pertaining to the Wawa Land Development Application. In each instance of a conflict of interest, Mr. Panzer would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. 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