The URL can be used to link to this page

Home My WebLink About12-520 Flickinger ADVICE OF COUNSEL March 28, 2012 Richard F. Flickinger, Esquire 300 North Market Street Ligonier, PA 15658 12-520 Dear Mr. Flickinger: This responds to your letters of February 2, 2012, and February 14, 2012, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether a solicitor of a borough planning commission is required to file Statements of Financial Interests pursuant to the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., where the planning commission has the authority to approve, approve with modification, or disapprove preliminary plans for subdivisions. Facts: As Solicitor of the Ligonier Borough Planning Commission (“Planning Commission”) you request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. The Borough of Ligonier (“Borough”) is located in Westmoreland County, Pennsylvania. For a number of years, you have been appointed by Borough Council to serve as Solicitor of the Planning Commission. You state that the Planning Commission was formed pursuant to the Pennsylvania Municipalities Planning Code, 53 P.S. § 10101 et seq. You state that pursuant to the Pennsylvania Municipalities Planning Code, the Borough can give the Planning Commission authority to approve subdivisions. You further state that whether the Borough has given the Planning Commission such authority is not clear as the Ligonier Borough Subdivision Ordinance (“Subdivision Ordinance”) contains contradictory provisions. You state that the Borough has declined to amend the Subdivision Ordinance to clarify its position and that, as a practical matter, all subdivision requests must be approved by the Borough in order to be recorded and become effective. You state that all subdivision requests are reviewed by the Borough Solicitor. You request an advisory confirming your conclusion that you are not required to file Statements of Financial Interests pursuant to the Ethics Act, based upon your belief that the Planning Commission is not a political subdivision and only has the authority to make recommendations. You have submitted pages 18-32 of the Subdivision Ordinance, which excerpt is incorporated herein by reference. It is administratively noted that except for minor Flickinger, 12-520 March 28, 2012 Page 2 subdivision plans, a subdivider is required to submit to the Planning Commission plans and data at two stages of preparation, which are designated a “Preliminary Plan” and a “Final Plan.” Subdivision Ordinance, Sections 303-304. The Subdivision Ordinance provides, in part, as follows: Section 305 Review of the “Preliminary Plan” Based upon a thorough review of the comments of the above-mentioned agencies and of the details of the “Preliminary Plan” in light of this ordinance, the Borough Planning Commission shall approve, approve with modification, or disapprove the “Preliminary Plan.” … Section 305.1 Changes and Modifications: The Borough Planning Commission may require or recommend changes or modifications of the “Preliminary Plan” as a prerequisite for approval of the “Final Plan.” Section 305.2 Approval of the “Preliminary Plan”: Approval or approval with conditions, revisions, or modifications as stipulated or suggested by the Borough Planning Commission of the “Preliminary Plan” shall constitute approval of the subdivision as to the character and intensity of development; the arrangement; and approximate dimensions of streets, lots, and other planned features. However, approval of the “Preliminary Plan” shall not constitute acceptance of approval for final approval and recording upon fulfillment of all requirements of these regulations. The action of the Borough Planning Commission shall be communicated to the subdivider in writing no later than fifteen (15) days following the decision. Section 306 Submission of the “Final Plan” After the subdivider has received official notification that his “Preliminary Plan” has been approved and recommended changes, if any, have been made, he has five (5) year [sic] in which to submit a “Final Plan.” If he does not do so within a five (5) year period, his “Preliminary Plan” shall be nullified unless a written time extension is approved by Borough Planning Commission. The “Final Plan” must conform to the general scheme of the “Preliminary Plan” as approved and must contain the information specified in Article IV, Section 404. . . . Section 307 Review of the “Final Plan” Within ninety (90) days from the submission of the “Final Plan,” the Borough Planning Commission shall review and act upon the “Plan” and notify the subdivider in writing of its action. Upon finding the “Final Plan” application to be in accordance with the requirements of this ordinance and for compliance with the approved “Preliminary Plan,” the Borough Planning Commission shall affix its seal upon the “Plan” together with the certifying signature of the Chairman…. Flickinger, 12-520 March 28, 2012 Page 3 Section 307.1 Approval of the “Final Plan”: Based upon a thorough review of the details of the “Final Plan,” the Borough shall approve; approve with conditions, revisions, or modifications; or disapprove the application; render its decision; and communicate its decision to the applicant within ninety (90) days after the date the “Final Plan” application was filed. The Borough Planning Commission shall notify the applicant in writing of its decision no later than fifteen (15) days following the decision. The approval of the “Final Plan” by the Borough Planning Commission shall not be deemed an acceptance of the proposed dedication and shall not impose any duty upon any of the municipalities of Westmoreland County concerning the maintenance or improvements of any such street, highway, alley, or other portions of the same, until the municipality in which the subdivision is located shall have accepted or made actual appropriation of the same by entry, use or improvement. Section 308 Recording of the “Final Plan” Within thirty (30) days after the date of the approval of the “Final Plan” by the Borough Planning Commission, the subdivider shall record an original of the same in the office of the County Recorder of Deeds and file with the Borough a Recorder’s Certificate that the approved Plan has been recorded with the Deed Book and page numbers indicated. If the subdivider fails to have the “Plan” recorded, the decision of the Borough Planning Commission is voided unless the subdivider has obtained a written extension of time approved in writing by the Borough. The subdivider shall proceed with the sale of lots and structures only after the “Final Plan” has been recorded with the County Recorder of Deeds. . . . Subdivision Ordinance, Sections 305, 305.1, 305.2, 306, 307, 307.1, 308. 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. Section 1104(a) of the Ethics Act provides that “[p]ersons who are full-time or part-time solicitors for political subdivisions are required to file [Statements of Financial Interests] under this section.” 65 Pa.C.S. § 1104(a). See, Foster, Opinion 98-002; P.J.S. v. State Ethics Commission, 555 Pa. 149, 723 A.2d 174 (1999) (intent of amendment to Section 404, now Section 1104, of the Ethics Act was to include solicitors who are not employees of the governmental units they serve within the scope of the Ethics Act’s financial disclosure provisions). The Ethics Act defines the terms “political subdivision” and “public official” as follows: Flickinger, 12-520 March 28, 2012 Page 4 § 1102. Definitions "Political subdivision." Any county, city, borough, incorporated town, township, school district, vocational school, county institution district, and any authority, entity or body organized by the aforementioned. "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. You are advised that the Planning Commission would fall squarely within the statutory definition of the term “political subdivision” as an entity or body organized by the Borough. 53 P.S. § 10201. Your assertion that the Planning Commission is not a political subdivision and only has the authority to make recommendations appears to invoke the advisory board exclusion to the definition of the term “public official.” However, the advisory board exclusion to the definition of the term “public official” is not applicable under the submitted facts, if for no other reason than the Planning Commission’s authority to make decisions as to Preliminary Plans. Specifically, the Planning Commission has authority to approve, approve with modification, or disapprove Preliminary Plans. Subdivision Ordinance, Section 305. The Planning Commission’s action as to approval of a Preliminary Plan constitutes approval of the subdivision as to the character and intensity of development, the arrangement, and approximate dimensions of streets, lots, and other planned features. Subdivision Ordinance, Section 305.2. The Planning Commission may require changes or modifications of the “Preliminary Plan” as a prerequisite for approval of the “Final Plan.” Subdivision Ordinance, Section 305.1. The “Final Plan” must conform to the general scheme of the “Preliminary Plan” as approved. Subdivision Ordinance, Section 306. In approving, approving with modification, or disapproving Preliminary Plans, the Planning Commission has the power to make independent decisions that are effective without approval of Borough Council. See, 51 Pa. Code § 11.1 (definition of “public official”) (i)(B)(V). The Planning Commission’s authority as to Preliminary Plans goes beyond an advisory function. Cf., Kerstetter, Advice 08-559. Based upon the above, you are advised that as Solicitor of the Planning Commission, you are required to file Statements of Financial Interests pursuant to the Ethics Act. Lastly, 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. Conclusion: As Solicitor of the Ligonier Borough Planning Commission, you are required to file Statements of Financial Interests pursuant to the Public Official and Flickinger, 12-520 March 28, 2012 Page 5 Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. 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