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Home My WebLink About12-548 Martocci ADVICE OF COUNSEL June 19, 2012 Lynn Robin Martocci Borough Secretary/Treasurer, CFO Borough of Bangor 197 Pennsylvania Avenue Bangor, PA 18013-1922 12-548 Dear Ms. Martocci: This responds to your letters of May 16, 2012, and May 22, 2012, 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 borough council member, who is also an employee of a municipal authority, with regard to voting on a request to rezone a portion of property where such rezoning might create additional revenue for the municipal authority. Facts: You have been authorized by Mark A. Brown, Sr. (“Mr. Brown”) to request an advisory from the Pennsylvania State Ethics Commission on his behalf. You have submitted facts that may be fairly summarized as follows. Mr. Brown is both a Member of Council for the Borough of Bangor (“Borough”) and a Member of the Borough’s Planning Commission (“Planning Commission”). Mr. Brown is also an employee of the Bangor Borough Authority (“Authority”), which is a separate entity from the Borough. A request was made to rezone a portion of property (the “Parcel”) located within the Borough from Light Industrial to Medium Residential. The Parcel is adjacent to a portion of property owned by the Authority. The rezoning request was approved by both the Planning Commission and the Lehigh Valley Planning Commission. You state that Mr. Brown, as a Member of the Planning Commission, voted in favor of the request to rezone the Parcel. The final decision on the rezoning request will be made by Borough Council. A resident made a statement that Mr. Brown, as a Borough Council Member, should recuse himself from voting on the request to rezone the Parcel because a vote in favor of the rezoning request would create additional revenue for the Authority by way of tap-in fees, user fees, garbage collection, and the like. Martocci, 12-548 June 19, 2012 Page 2 Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose any prohibitions or restrictions upon Mr. Brown, in his capacity as a Borough Council Member, with regard to voting on the rezoning request for the Parcel. Discussion: 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 noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion/advice may be given only as to prospective (future) conduct. 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 Borough Council Member, Mr. Brown is a public official 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). Martocci, 12-548 June 19, 2012 Page 3 The following terms 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. "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. "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. 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. Martocci, 12-548 June 19, 2012 Page 4 In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. Since the Authority is a “political subdivision” and not a “business” as defined by the Ethics Act, Mr. Brown would not have a conflict of interest under Section 1103(a) of the Ethics Act in matters before Borough Council that would financially impact the Authority but that would not financially impact him, a member of his immediate family, or a business with which he or a member of his immediate family is associated. A pecuniary benefit flowing solely to a governmental entity would not form the basis for a conflict of interest under Section 1103(a) of the Ethics Act. See, Confidential Opinion, 01-005; McCarrier/Anderson, Opinion 98-008; Warso, Order 974. You are advised that absent some basis for a conflict of interest such as a private pecuniary benefit to Mr. Brown, a member of his immediate family, or a business with which he or a member of his immediate family is associated, Mr. Brown, in his capacity as a Borough Council Member, would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting on the rezoning request for the Parcel. 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 Borough Code. Conclusion: As a Member of Council for the Borough of Bangor (“Borough”), Mark A. Brown, Sr. (“Mr. Brown”) 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) Mr. Brown is a Member of the Borough’s Planning Commission (“Planning Commission”); (2) Mr. Brown is also an employee of the Bangor Borough Authority (“Authority”), which is a separate entity from the Borough; (3) a request was made to rezone a portion of property (the “Parcel”) located within the Borough from Light Industrial to Medium Residential; (4) the Parcel is adjacent to a portion of property owned by the Authority; (5) the rezoning request was approved by both the Planning Commission and the Lehigh Valley Planning Commission; (6) Mr. Brown, as a Member of the Planning Commission, voted in favor of the request to rezone the Parcel; (7) the final decision on the rezoning request will be made by Borough Council; and (8) a resident made a statement that Mr. Brown, as a Borough Council Member, should recuse himself from voting on the request to rezone the Parcel because a vote in favor of the rezoning request would create additional revenue for the Authority by way of tap-in fees, user fees, garbage collection, and the like, you are advised as follows. Since the Authority is a “political subdivision” and not a “business” as defined by the Ethics Act, Mr. Brown would not have a conflict of interest under Section 1103(a) of the Ethics Act in matters before Borough Council that would financially impact the Authority but that would not financially impact him, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Absent some basis for a conflict of interest such as a private pecuniary benefit to Mr. Brown, a member of his immediate family, or a business with which he or a member of his immediate family is associated, Mr. Brown, in his capacity as a Borough Council Member, would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting on the rezoning request for the Parcel. 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 Martocci, 12-548 June 19, 2012 Page 5 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