HomeMy WebLinkAbout12-541 Dwyer
ADVICE OF COUNSEL
May 23, 2012
Michael Dwyer, Supervisor
Middle Smithfield Township Supervisors
25 Municipal Drive
East Stroudsburg, PA 18302-9710
12-541
Dear Mr. Dwyer:
This responds to your letters dated April 20, 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 the
individual might have accepted campaign contributions as a non-incumbent candidate
for township supervisor from: (1) individuals who opposed two township ordinances
which newly permitted adult uses in the township’s commercial zoning district on a
conditional use basis; and (2) individuals who are objecting parties to the developer’s
conditional use application for the aforesaid property.
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 appointed to the Township Board of Supervisors (“Board of
Supervisors” or “Board”) on November 10, 2011, to fill a vacancy caused by the
resignation of a Township Supervisor. You were also a candidate for Township
Supervisor in 2011, but you did not win the general election. 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. You state that you
have no relationship with Mr. Spano.
Dwyer, 12-541
May 23, 2012
Page 2
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 contributed $50.00 for you and your wife to attend 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 or Ordinance 176, and you did not
attend any meetings with attorneys for the groups opposing said ordinances. Ordinance
172 was ruled invalid and Ordinance 176 was ruled valid by the Monroe County Court of
Common Pleas.
The Developer received approval of its conditional use application (the
“Developer’s Application”) for the Property. The approval of the Developer’s Application
is currently being appealed in the Monroe County Court of Common Pleas.
You state that you have no relationship with any attorney involved in the
opposition of Ordinance 172, Ordinance 176, or the Developer’s Application.
You received approximately $6,500.00 in total contributions from others in
connection with your campaign for Township Supervisor in 2011. You state that you
received campaign contributions from individuals besides those who would identify
themselves as 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 and from individuals
who are objecting parties to the Developer’s Application. 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
Township. After you had been appointed Township Supervisor in 2011, 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
Dwyer, 12-541
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
affects to the same degree a class consisting of the general
Dwyer, 12-541
May 23, 2012
Page 4
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.
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 appointed to the
Township Board of Supervisors (“Board of Supervisors” or “Board”) on November 10,
2011, to fill a vacancy caused by the resignation of a Township Supervisor; (2) you were
also a candidate for Township Supervisor in 2011, but you did not win the general
election; (3) during your campaign for Township Supervisor, you stated a view opposing
strip clubs on State Route 209; (4) 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; (5) two Township Ordinances, Middle Smithfield Township
Ordinance 172 (“Ordinance 172”) and Middle Smithfield Township Ordinance 176
Dwyer, 12-541
May 23, 2012
Page 5
(“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; (6) you were not a party to any litigation involving Ordinance 172 or
Ordinance 176, and you did not attend any meetings with attorneys for the groups
opposing said ordinances; (7) Ordinance 172 was ruled invalid and Ordinance 176 was
ruled valid by the Monroe County Court of Common Pleas; (8) the Developer received
approval of its conditional use application (the “Developer’s Application”) for the
Property; (9) the approval of the Developer’s Application is currently being appealed in
the Monroe County Court of Common Pleas; (10) you have no relationship with any
attorney involved in the opposition of Ordinance 172, Ordinance 176, or the Developer’s
Application; (11) you received campaign contributions from individuals besides those
who would identify themselves as members of the so-called opposition group to the
Developer’s development plans; (12) you might have accepted campaign contributions
from individuals who opposed Ordinance 172 and Ordinance 176 and from individuals
who are objecting parties to the Developer’s Application; and (13) after you had been
appointed Township Supervisor in 2011, 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. 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. 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