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HomeMy WebLinkAbout12-567 MUSEWICZ ADVICE OF COUNSEL October 15, 2012 John Musewicz 2 Mruck Street Throop, PA 18512 12-567 Dear Mr. Musewicz: This responds to your letter of September 4, 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 in a private capacity is the president of a booster club to which the borough deeded a portion of land for recreational use subject to a reverter clause, with regard to voting as to whether the borough should allow the installation of a cell tower on such land pursuant to a potential lease agreement between the booster club and Verizon Wireless. Facts: You request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. You are a Member of Council for Throop Borough (“Borough”). In a private capacity, you are President of the Throop Booster Club (the “Booster Club”). In 1974, the Borough deeded a small portion of land (the “Land”) to the Booster Club to be used for recreation. The deed for the Land contains a reverter clause providing that the Land would revert to the Borough if not used for recreation for a period of one year. The local little league and softball programs have been using the Land since it was deeded to the Booster Club. The Booster Club might enter into a lease agreement (“Lease Agreement”) with Verizon Wireless for the installation of a cell tower on the Land in exchange for a monthly fee. You state that you would not receive any sum of money from the potential Lease Agreement, either as a Borough Council Member or as President of the Booster Club. Based upon the above submitted facts, you seek guidance as to whether you would be permitted to participate if Borough Council would vote as to whether to permit the installation of a cell tower on the Land pursuant to the potential Lease Agreement. Musewicz, 12-567 October 15, 2012 Page 2 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 Member of Borough Council, 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 Musewicz, 12-567 October 15, 2012 Page 3 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. 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 as follows. The Booster Club is a business with which you are associated in your capacity as an officer (President). Subject to the statutory exceptions to the definition of “conflict” or “conflict of interest” as set forth in the Ethics Act, 65 Pa.C.S. § 1102, pursuant to Section 1103(a) of the Ethics Act, in your capacity as a Borough Council Member, you would have a conflict of interest with regard to any matter(s) that would financially impact the Booster Club, including but not limited to vote(s) by Borough Council as to whether the Borough should permit the installation of a cell tower on the Land. As noted above, in each instance of a conflict of interest, you 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 Musewicz, 12-567 October 15, 2012 Page 4 disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. 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 Throop Borough (“Borough”), 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) in a private capacity, you are President of the Throop Booster Club (the “Booster Club”); (2) in 1974, the Borough deeded a small portion of land (the “Land”) to the Booster Club to be used for recreation; (3) the deed for the Land contains a reverter clause providing that the Land would revert to the Borough if not used for recreation for a period of one year; (4) the local little league and softball programs have been using the Land since it was deeded to the Booster Club; (5) the Booster Club might enter into a lease agreement (“Lease Agreement”) with Verizon Wireless for the installation of a cell tower on the Land in exchange for a monthly fee; and (6) you would not receive any sum of money from the potential Lease Agreement, either as a Borough Council Member or as President of the Booster Club, you are advised as follows. The Booster Club is a business with which you are associated in your capacity as an officer (President). Subject to the statutory exceptions to the definition of “conflict” or “conflict of interest” as set forth in the Ethics Act, 65 Pa.C.S. § 1102, pursuant to Section 1103(a) of the Ethics Act, in your capacity as a Borough Council Member, you would have a conflict of interest with regard to any matter(s) that would financially impact the Booster Club, including but not limited to vote(s) by Borough Council as to whether the Borough should permit the installation of a cell tower on the Land pursuant to the potential Lease Agreement. In each instance of a conflict of interest, you 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. 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 Musewicz, 12-567 October 15, 2012 Page 5 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