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HomeMy WebLinkAbout13-529 DeBias ADVICE OF COUNSEL May 6, 2013 Robert M. DeBias, Esquire Wood and Floge 2246 Bristol Pike Bensalem, PA 19020-5295 13-529 Dear Mr. DeBias: This responds to your letter of March 15, 2013, 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 a party to legal proceedings opposing a business’ request for a variance from the borough zoning ordinance for a picnic park operated on land adjoining the borough council member’s residential real property, with regard to attending borough council meetings or participating in discussions or votes by borough council pertaining to such pending legal proceedings. Facts: As Solicitor for Hulmeville Borough (“Borough”), located in Bucks County, Pennsylvania, you have been authorized by a Member of Borough Council (hereinafter referred to as “the Council Member”) to request an advisory from the Pennsylvania State Ethics Commission on his behalf. You have submitted facts, the material portion of which may be fairly summarized as follows. A business (the “Business”) in the Borough operates a picnic park (the “Park”) on land which adjoins the residential real property of the Council Member. The Business and its owner have filed for a variance (“Variance”) from the Borough Zoning Ordinance to conduct the business operations of the Park at a noise level exceeding that permitted by the Borough Zoning Ordinance. You state that the Borough opposes the Variance. The Council Member became a party to legal proceedings opposing the Variance before the Borough Zoning Hearing Board (“Zoning Board”) in order to present evidence and testify to his personal reasons for the Zoning Board to deny the Variance. You state that the Council Member also represents the concerns of many neighbors who oppose the Variance. DeBias, 13-529 May 6, 2013 Page 2 The Zoning Board denied the Variance after a hearing. The owner of the Business filed an appeal with the Court of Common Pleas, and after several conferences, the matter was remanded to the Zoning Board for further hearings and the production of additional testimony and evidence by all parties. The Zoning Board proceedings are pending, and the Council Member is represented by a private attorney in connection with those proceedings. You state that the next Zoning Board hearing is not scheduled for several months and that in the interim as well as in the immediate future, there will be discussions by Borough Council regarding strategy in dealing with the issues, witnesses, expert witnesses, and preparation for the Zoning Board hearing. Based upon the above submitted facts, you ask whether the Ethics Act would impose any prohibitions or restrictions upon the Council Member with regard to attending Borough Council meetings or participating in discussions or votes by Borough Council pertaining to the pending legal proceedings regarding the Variance. You state that you have recommended that the Council Member must recuse himself and leave the building during Borough Council discussions and executive sessions dealing with or relating to the pending legal proceedings regarding the Variance in order to avoid any ethical improprieties or conflict of interest or the appearance of such and that the Council Member has done so. You further state that the Council Member has frequently disputed the need for him to recuse himself and that although the Council Member agrees he is not permitted to cast any votes relative to such legal proceedings, he believes he is permitted to attend and to participate in Council discussions and executive sessions relative to such legal proceedings. You additionally state that the Council Member has agreed to continue to recuse himself pending the issuance of an advisory in response to your inquiry. 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. It is further initially 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 that 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 Member of Borough Council, the Council Member on whose behalf you have inquired 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 DeBias, 13-529 May 6, 2013 Page 3 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 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. DeBias, 13-529 May 6, 2013 Page 4 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. Sections 1103(b) and 1103(c) of the Ethics Act, 65 Pa.C.S. §§ 1103(b), (c), provide in part that no person shall offer or give to a public official/public employee anything of monetary value and no public official/public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official/public employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. In applying the above provisions of the Ethics Act to your inquiry, you are advised as follows. The Council Member generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters before Borough Council that would financially impact the Council Member, a member of the Council Member’s immediate family, or a business with which the Council Member or a member of his immediate family is associated. Per State Ethics Commission precedent, a public official who is a party to litigation in his private capacity generally would have a conflict of interest in his capacity as a public official in matters pertaining to or affecting such litigation or a party to such litigation. See, DeLano, Opinion 88-008; Golla, Opinion 88-004; cf., Nietupski, Advice 10-606; Smith, Advice 09-500; McCullough, Advice 07-534; Oswalt, Advice 07-524; Hiscott, Advices 06-517 and 06-517-S. The Pennsylvania Supreme Court has held that in order to violate Section 1103(a) of the Ethics Act, a public official/public employee “must be consciously aware of a private pecuniary benefit for himself, his family, or his business, and then must take action in the form of one or more specific steps to attain that benefit.” Kistler v. State Ethics Commission, 610 Pa. 516, 528, 22 A.3d 223, 231 (2011). Based upon the above precedents, you are advised that the Council Member would have a conflict of interest and would transgress Section 1103(a) of the Ethics Act by using the authority of his public office or confidential information received by being in his public office in relation to the pending legal proceedings regarding the Variance, to the extent the Council Member would be consciously aware of a private pecuniary benefit for himself, a member of his immediate family, or a business with which he or a member of his immediate family is associated, and his action(s) would constitute one or more specific steps to attain that benefit. Kistler, supra. As noted above, in each instance of a conflict of interest, the Council Member 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. Section 1103(a) of the Ethics Act would not prohibit the Council Member from being present at any public meeting of Borough Council. DeBias, 13-529 May 6, 2013 Page 5 The propriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the Borough Code or case law as to bias. Conclusion: The Member of Borough Council for the Borough of Hulmeville (“Borough”) on whose behalf you have inquired (hereinafter referred to as “the Council Member”) 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) a business (the “Business”) in the Borough operates a picnic park (the “Park”) on land which adjoins the residential real property of the Council Member; (2) the Business and its owner have filed for a variance (“Variance”) from the Borough Zoning Ordinance to conduct the business operations of the Park at a noise level exceeding that permitted by the Borough Zoning Ordinance; (3) the Borough opposes the Variance; (4) the Council Member became a party to legal proceedings opposing the Variance before the Borough Zoning Hearing Board (“Zoning Board”) in order to present evidence and testify to his personal reasons for the Zoning Board to deny the Variance; (5) the Council Member also represents the concerns of many neighbors who oppose the Variance; (6) the Zoning Board denied the Variance after a hearing; (7) the owner of the Business filed an appeal with the Court of Common Pleas, and after several conferences, the matter was remanded to the Zoning Board for further hearings and the production of additional testimony and evidence by all parties; (8) the Zoning Board proceedings are pending, and the Council Member is represented by a private attorney in connection with those proceedings; and (9) the next Zoning Board hearing is not scheduled for several months, and in the interim as well as in the immediate future, there will be discussions by Borough Council regarding strategy in dealing with the issues, witnesses, expert witnesses, and preparation for the Zoning Board hearing, you are advised as follows. The Council Member generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters before Borough Council that would financially impact the Council Member, a member of the Council Member’s immediate family, or a business with which the Council Member or a member of his immediate family is associated. The Council Member would have a conflict of interest and would transgress Section 1103(a) of the Ethics Act by using the authority of his public office or confidential information received by being in his public office in relation to the pending legal proceedings regarding the Variance, to the extent the Council Member would be consciously aware of a private pecuniary benefit for himself, a member of his immediate family, or a business with which he or a member of his immediate family is associated, and his action(s) would constitute one or more specific steps to attain that benefit. In each instance of a conflict of interest, the Council Member 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. Section 1103(a) of the Ethics Act would not prohibit the Council Member from being present at any public meeting of Borough Council. 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 DeBias, 13-529 May 6, 2013 Page 6 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