HomeMy WebLinkAbout12-539 Atkinson
ADVICE OF COUNSEL
May 23, 2012
Annette Atkinson, Supervisor
Middle Smithfield Township Supervisors
25 Municipal Drive
East Stroudsburg, PA 18302-9710
12-539
Dear Ms. Atkinson:
This responds to your letters of April 17, 2012, and April 25, 2012, by which you
requested an advisory from the Pennsylvania State Ethics Commission.
Issue:
Whether, pursuant to the Public Official and Employee Ethics Act (“Ethics
Act”), 65 Pa.C.S. § 1101 et seq., an individual serving as a township supervisor would
have a conflict of interest with regard to participating in discussions or votes by the
township board of supervisors pertaining to a developer’s land development plan for the
proposed establishment of a strip club on a property located in the township where,
prior to being elected as a township supervisor, the individual: (1) was involved in
litigation opposing two township ordinances which newly permitted adult uses in the
township’s commercial zoning district on a conditional use basis; (2) accepted campaign
contributions as a non-incumbent candidate for township supervisor from individuals
who opposed the aforesaid ordinances and individuals who are objecting parties to the
developer’s conditional use application for the aforesaid property; and (3) personally
signed a retainer agreement with an attorney under which the individual believes she is
financially obligated to pay for the attorney’s representation of the parties opposing the
developer’s conditional use application to the extent there are no other available funds
to pay for the attorney’s services.
Facts:
As a Supervisor for Middle Smithfield Township (“Township”), located in
Monroe County, Pennsylvania, you request an advisory from the Pennsylvania State
Ethics Commission based upon submitted facts that may be fairly summarized as
follows.
You were first appointed to the Township Board of Supervisors (“Board of
Supervisors” or “Board”) on November 10, 2011, to complete the term of a Township
Supervisor who had resigned. You were also a candidate for Township Supervisor in
2011, and on January 3, 2012, you began serving a six-year term as an elected
Township Supervisor.
Atkinson, 12-539
May 23, 2012
Page 2
A developer named “HOTT PA, Inc.” (“Developer”) seeks to establish an Adult
Use facility, specifically a strip club (the “Proposed Club”), on a property (the “Property”)
adjacent to State Route 209 in the Township’s C-1 Commercial Zoning District.
Your residence is approximately two miles away from the location of the
Proposed Club. You state that neither you nor your immediate family members own
property adjacent to or in close proximity to the Property or have a financial interest in
any business adjacent to or in close proximity to the Property. You further state that
neither you nor your immediate family members have any financial interest in the
Developer or in any adult entertainment business.
You are a founding member of an unincorporated association named
“keepXXXoff209.com” (the “Association”) which is registered with the Commonwealth of
Pennsylvania under your husband’s name. The Association’s purpose is to advocate
keeping adult use facilities off of State Route 209. You have donated time and money
to the Association, and you were actively involved in fundraising and advocating on
behalf of the Association prior to your election to the Board of Supervisors.
Before you assumed office as a Township Supervisor, you were a party to a
lawsuit that opposed Middle Smithfield Township Ordinance 172 (“Ordinance 172”), and
you took an active role in litigation against Middle Smithfield Township Ordinance 176
(“Ordinance 176”). The two aforesaid ordinances were comprehensive zoning
amendments which, inter alia, newly permitted adult uses in the Township’s C-1
Commercial Zoning District on a conditional use basis.
You contributed money directly or indirectly toward legal fees or litigation
expenses in connection to the opposition of Ordinance 172 and Ordinance 176, and you
personally signed a retainer agreement with Don Miles, Esquire (“Attorney Miles”) on
behalf of the group that opposed Ordinance 176. The Developer was an intervenor in
the litigation against Ordinance 176. Ordinance 172 was ruled invalid and Ordinance
176 was ruled valid by the Monroe County Court of Common Pleas.
Attorney Miles currently represents a group (“Group”) which opposes the
approval of the Developer’s conditional use application (the “Developer’s Application”)
for the Property. You attended meetings with Attorney Miles and members of the
Group which pertained to the Developer’s Application, and you served subpoenas on
behalf of the Group which directed witnesses to appear at hearings on the Developer’s
Application.
The approval of the Developer’s Application is currently being appealed in the
Monroe County Court of Common Pleas. You state that to your knowledge, individuals
who oppose the Developer’s Application have not executed a new retainer letter with
Attorney Miles. You express your belief that you are financially obligated to pay for
Attorney Miles’ representation of the parties opposing the Developer’s Application to the
extent there are no other available funds to pay for his services.
You received approximately $3,400.00 in total contributions from others for your
campaign for Township Supervisor in 2011. You accepted campaign contributions from
individuals who opposed Ordinance 172 and Ordinance 176 and from individuals who
are objecting parties to the Developer’s Application. You state that you also received
campaign contributions from other individuals besides those who would identify
themselves as members of the so-called opposition group to the Developer’s
development plans. You state that at no time did you accept a campaign contribution
with the understanding that it would influence your vote on a particular matter, including
the Developer’s development plans.
The Board of Supervisors reviews and rules upon applications for approval of
subdivision and land development plans filed by developers and property owners in the
Atkinson, 12-539
May 23, 2012
Page 3
Township. After you were elected as a Township Supervisor, the Developer filed a land
development plan for the Property (the “Developer’s Plan”) with the Township.
You state that the Developer has made an allegation that you would have a
conflict of interest with regard to participating in discussions and/or voting on the
Developer’s Plan. You further state that at the Board’s meeting on April 3, 2012,
counsel for the Developer made similar allegations of a conflict of interest. You state
that the Developer’s counsel appeared to make a comment that a Township
Supervisor’s receipt of a campaign contribution from anyone who had previously
opposed Ordinance 172 and Ordinance 176 or from anyone opposed to the Developer’s
Application would create a conflict of interest.
Based upon the above submitted facts, you seek guidance as to whether you
would have a conflict of interest under the Ethics Act with regard to participating in
discussion(s) and/or vote(s) by the Board of Supervisors pertaining to the Developer’s
Plan.
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.
As a Township Supervisor, you are a public official as that term is defined in the
Ethics Act, and therefore you are 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
Atkinson, 12-539
May 23, 2012
Page 4
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.
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 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 your receipt of the aforesaid campaign contributions at a time when you
were a non-incumbent candidate for Township Supervisor, and therefore were not
subject to Section 1103(a) of the Ethics Act, would not in and of itself form the basis of a
conflict of interest for you under the Ethics Act with regard to participating in the Board’s
discussion(s) and/or vote(s) on the Developer’s Plan. See, Wolfgang, Opinion 89-028.
The submitted facts do not indicate that matters before the Board involving the
Developer’s Plan would financially impact you. Therefore, based upon the submitted
Atkinson, 12-539
May 23, 2012
Page 5
facts, you are advised that absent some basis for a conflict of interest such as a private
pecuniary benefit to you, a member of your immediate family, or a business with which
you or a member of your immediate family is associated, Section 1103(a) of the Ethics
Act would not prohibit you from participating in the Board’s discussion(s) and/or vote(s)
on the Developer’s Plan.
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 Supervisor for Middle Smithfield Township (“Township”),
located in Monroe County, Pennsylvania, you are 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) you were first appointed to the
Township Board of Supervisors (“Board of Supervisors” or “Board”) on November 10,
2011, to complete the term of a Township Supervisor who had resigned; (2) you were
also a candidate for Township Supervisor in 2011, and on January 3, 2012, you began
serving a six-year term as an elected Township Supervisor; (3) a developer named
“HOTT PA, Inc.” (“Developer”) seeks to establish an Adult Use facility, specifically a
strip club (the “Proposed Club”), on a property (the “Property”) adjacent to State Route
209 in the Township’s C-1 Commercial Zoning District; (4) before you assumed office as
a Township Supervisor, you were a party to a lawsuit that opposed Middle Smithfield
Township Ordinance 172 (“Ordinance 172”), and you took an active role in litigation
against Middle Smithfield Township Ordinance 176 (“Ordinance 176”); (5) the two
aforesaid ordinances were comprehensive zoning amendments which, inter alia, newly
permitted adult uses in the Township’s C-1 Commercial Zoning District on a conditional
use basis; (6) you contributed money directly or indirectly toward legal fees or litigation
expenses in connection to the opposition of Ordinance 172 and Ordinance 176, and you
personally signed a retainer agreement with Don Miles, Esquire (“Attorney Miles”) on
behalf of the group that opposed Ordinance 176; (7) the Developer was an intervenor in
the litigation against Ordinance 176; (8) Ordinance 172 was ruled invalid and
Ordinance 176 was ruled valid by the Monroe County Court of Common Pleas; (9)
Attorney Miles currently represents a group (“Group”) which opposes the approval of the
Developer’s conditional use application (the “Developer’s Application”) for the Property;
(10) the approval of the Developer’s Application is currently being appealed in the
Monroe County Court of Common Pleas; (11) to your knowledge, individuals who
oppose the Developer’s Application have not executed a new retainer letter with
Attorney Miles, and you believe you are financially obligated to pay for Attorney Miles’
representation of the parties opposing the Developer’s Application to the extent there
are no other available funds to pay for his services; (12) you accepted campaign
contributions for your campaign for Township Supervisor in 2011 from individuals who
opposed Ordinance 172 and Ordinance 176 and individuals who are objecting parties to
the Developer’s Application; (13) you also received campaign contributions from other
individuals besides those who would identify themselves as members of the so-called
opposition group to the Developer’s development plans; and (14) after you were elected
as a Township Supervisor, the Developer filed a land development plan for the Property
(the “Developer’s Plan”) with the Township, you are advised as follows.
Your receipt of the aforesaid campaign contributions at a time when you were a
non-incumbent candidate for Township Supervisor, and therefore were not subject to
Section 1103(a) of the Ethics Act, would not in and of itself form the basis of a conflict of
interest for you under the Ethics Act with regard to participating in the Board’s
discussion(s) and/or vote(s) on the Developer’s Plan. Based upon the submitted facts,
you are advised that absent some basis for a conflict of interest such as a private
pecuniary benefit to you, a member of your immediate family, or a business with which
you or a member of your immediate family is associated, Section 1103(a) of the Ethics
Act would not prohibit you from participating in the Board’s discussion(s) and/or vote(s)
Atkinson, 12-539
May 23, 2012
Page 6
on the Developer’s Plan. 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