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HomeMy WebLinkAbout12-540 Marcus ADVICE OF COUNSEL May 23, 2012 Mitchell Marcus, Supervisor Middle Smithfield Township Supervisors 25 Municipal Drive East Stroudsburg, PA 18302-9710 12-540 Dear Mr. Marcus: This responds to your letter dated April 16, 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 the individual: (1) was a party to litigation opposing one of two township ordinances which newly permitted adult uses in the township’s commercial zoning district on a conditional use basis; (2) might have accepted campaign contributions as a non-incumbent candidate for township supervisor from individuals who opposed the aforesaid ordinances; and (3) was previously involved in unrelated litigation against a former township supervisor who may have an ownership interest in the property where the strip club is proposed to be located. 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 elected as a Township Supervisor in the fall of 2009, and you first took office as a Township Supervisor in January 2010. During your campaign for Township Supervisor, you stated a view opposing strip clubs on State Route 209. 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. The Property is currently owned by Robert Spano (“Mr. Spano”), his immediate family members, or a business entity in which they have an interest. Mr. Spano is a former Township Supervisor, and he served with you in 2011. In 2011 you filed a Marcus, 12-540 May 23, 2012 Page 2 mandamus action (the “Spano/Schaller Litigation”) against Mr. Spano and another former Township Supervisor, Scott Schaller, pertaining to your access to Township information as a Township Supervisor. The Spano/Schaller Litigation has since been settled and discontinued with prejudice. Your residence is approximately three 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 contributed $25.00 for admission to a fundraising event sponsored by a group named “keepXXXoff209.com,” which group’s purpose is to advocate keeping adult use facilities off of State Route 209. Two Township Ordinances, Middle Smithfield Township Ordinance 172 (“Ordinance 172”) and Middle Smithfield Township Ordinance 176 (“Ordinance 176”), 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 were not a party to any litigation involving Ordinance 172, but you were a party to litigation opposing Ordinance 176. You contributed approximately $750.00 to help with the attorney’s fees of the group opposed to 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. You received no more than $1,500.00 in total contributions from others in connection with your campaign for Township Supervisor in 2009. You state that you received campaign contributions from individuals besides those who would identify themselves as active members of the so-called opposition group to the Developer’s development plans. You state that you might have accepted campaign contributions from individuals who opposed Ordinance 172 and Ordinance 176. 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 Township Board of Supervisors (“Board of Supervisors” or “Board”) reviews and rules upon applications for approval of subdivision and land development plans filed by developers and property owners in the Township. In 2011, the Developer filed a conditional use application (the “Developer’s Application”) and a land development plan for the Property (the “Developer’s Plan”) with the Township. You state that aside from attending hearings, you were not involved as to the Developer’s Application. 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 Marcus, 12-540 May 23, 2012 Page 3 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 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 Marcus, 12-540 May 23, 2012 Page 4 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. Additionally, the prior Spano/Schaller Litigation would not form the basis for a conflict of interest for you under the Ethics Act with regard to the Developer’s Plan. 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 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 elected as a Township Supervisor in the fall of 2009, and you first took office as a Township Supervisor in January 2010; (2) during your campaign for Township Supervisor, you stated a view Marcus, 12-540 May 23, 2012 Page 5 opposing strip clubs on State Route 209; (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) the Property is currently owned by Robert Spano (“Mr. Spano”), his immediate family members, or a business entity in which they have an interest; (5) Mr. Spano is a former Township Supervisor, and he served with you in 2011; (6) in 2011 you filed a mandamus action (the “Spano/Schaller Litigation”) against Mr. Spano and another former Township Supervisor, Scott Schaller, pertaining to your access to Township information as a Township Supervisor; (7) the Spano/Schaller Litigation has since been settled and discontinued with prejudice; (8) two Township Ordinances, Middle Smithfield Township Ordinance 172 (“Ordinance 172”) and Middle Smithfield Township Ordinance 176 (“Ordinance 176”), 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; (9) you were not a party to any litigation involving Ordinance 172, but you were a party to litigation opposing Ordinance 176; (10) you contributed approximately $750.00 to help with the attorney’s fees of the group opposed to Ordinance 176; (11) Ordinance 172 was ruled invalid and Ordinance 176 was ruled valid by the Monroe County Court of Common Pleas; (12) you received campaign contributions for your campaign for Township Supervisor in 2009 from individuals besides those who would identify themselves as active members of the so-called opposition group to the Developer’s development plans; (13) you might have accepted campaign contributions from individuals who opposed Ordinance 172 and Ordinance 176; (14) in 2011, the Developer filed a conditional use application (the “Developer’s Application”) and a land development plan for the Property (the “Developer’s Plan”) with the Township; and (15) aside from attending hearings, you were not involved as to the Developer’s Application, 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 Township Board of Supervisors’ discussion(s) and/or vote(s) on the Developer’s Plan. The prior Spano/Schaller Litigation would not form the basis for a conflict of interest for you under the Ethics Act with regard to the Developer’s Plan. 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 Township Board of Supervisors’ discussion(s) and/or vote(s) 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 Marcus, 12-540 May 23, 2012 Page 6 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