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HomeMy WebLinkAbout13-532 Groh ADVICE OF COUNSEL May 8, 2013 John Groh, CBO, CFM Building and Zoning Administrator The Borough of Edinboro Building Code Department 124 Meadville Street Edinboro, PA 16412-2502 13-532 Dear Mr. Groh: This responds to your letter of March 18, 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 prohibitions or restrictions upon a borough building and zoning code administrator, who is also a candidate for township supervisor, with regard to performing his duties as a building and zoning code administrator as to builder(s) and developer(s) which contribute to his campaign. Facts: You request an advisory from the Pennsylvania State Ethics Commission based upon the following submitted facts. You are employed by the Borough of Edinboro (“Borough”) as the Borough’s Building and Zoning Code Administrator. As the Borough Building and Zoning Code Administrator, your duties include the administration and enforcement of the building code and zoning, planning and land development ordinances enacted and adopted by the Borough. You are a resident of Millcreek Township (“Township”), and currently you are a candidate for the office of Township Supervisor. Prior to filing your nominating petition papers in March 2013, you were informed that a large land developer in your area (“the Developer”) would be contributing to your campaign. The Developer is a partner in a joint venture to construct an apartment complex in the Borough. You state that for the land use portion of an application, your duties are strictly administrative; specifically, you receive the application, forward it to the respective bodies for their review and formal action, and, if the application is approved by such bodies, issue a land development permit. However, for the building permit portion of the permit process, you review and act upon applications for building permits. You are the Borough’s designated building code official and inspector. Groh, 13-532 May 8, 2013 Page 2 You state that you are uncertain as to how you should handle possible contributions from the Developer or other builders which might apply for building permits in the Borough. Based upon the above, you seek advice as to how to proceed in this matter or any similar scenario. 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 the Building and Zoning Code Administrator for the Borough, you are a public official/public employee 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 are defined in the Ethics Act as follows: Groh, 13-532 May 8, 2013 Page 3 § 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. 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, pertaining to improper influence, provide as follows: § 1103. Restricted activities (b)Seeking improper influence.— No person shall offer or give to a public official, public employee or nominee or candidate for public office or a member of his immediate family or a business with which he is associated, anything of monetary value, including a gift, loan, political contribution, reward or promise of future employment based on the offeror's or donor's understanding that the vote, official action or judgment of the public official or public employee or nominee or candidate for public office would be influenced thereby. (c) Accepting improper influence.— No public official, public employee or nominee or candidate for public Groh, 13-532 May 8, 2013 Page 4 office shall solicit or accept anything of monetary value, including a gift, loan, political contribution, reward or promise of future employment, based on any understanding of that public official, public employee or nominee that the vote, official action or judgment of the public official or public employee or nominee or candidate for public office would be influenced thereby. 65 Pa.C.S. §§ 1103(b), (c). Finally, the Ethics Act defines the term “gift” as it is defined in Section 13A03 of Pennsylvania’s lobbying disclosure law: § 13A03. Definitions "Gift." Anything which is received without consideration of equal or greater value. The term shall not include a political contribution otherwise reportable as required by law or a commercially reasonable loan made in the ordinary course of business. The term shall not include hospitality, transportation or lodging. 65 Pa.C.S. §§ 1102, 13A03 (Emphasis added). There are two Commission Opinions that have considered whether political contributions may form the basis for a violation of the Ethics Act. In Wolfgang, Opinion 89-028, the Commission addressed the issue of whether a non-incumbent candidate for office who received political contributions from building contractors could, if elected, vote on issues involving those contractors without transgressing Section 3(a) (now Section 1103(a)) of the Ethics Act. The Commission determined that because Wolfgang was a non-incumbent candidate, Section 3(a) did not apply; thus, the Commission was limited to deciding the matter based only upon Sections 3(b) and 3(c) (now Sections 1103(b) and 1103(c)) of the Ethics Act. The Commission stated: As to Sections 3(b) and (c) of the Ethics Law, the fact that someone has made a contribution to a campaign for public office does not per se create an “understanding” between the contributor and candidate which would be prohibited by the two sections of the Ethics Law. On the submitted facts, we have no evidence to indicate that any understanding exists between the receipt of the contributions and your future voting, if you are elected. Therefore, based upon the facts as you presented them and based upon the express assumption that no understanding exists, the Ethics Law would not restrict your voting on issues as to these contractors. Wolfgang, supra, at 3. In Confidential Opinion, 04-009, a county official (referred to as Official A) requested a confidential advisory as to whether he/she would have a conflict of interest under the Ethics Act with regard to an ongoing investigation of another county official (referred to as Official C) where these individuals had made political contributions to each other’s campaigns. Under the submitted facts, it was not clear whether Official A was an incumbent or non-incumbent candidate at the times he/she received political contributions from Official C. It was also unknown whether the political contributions Groh, 13-532 May 8, 2013 Page 5 that the officials made to each other’s campaigns occurred so close in time so as to create a set-off, whether the amounts were de minimis or significant, or whether other relevant factors existed that would impact a determination of whether Official A would have a conflict of interest under the Ethics Act. The Commission determined that in the absence of sufficient facts, only general guidance could be provided to Official A. The Commission held: A political contribution otherwise reported as required by law, while not a “gift,” could form the basis for a conflict of interest under Section 1103(a) of the Ethics Act. The Official A would be precluded from participating in the investigation or prosecution of the county Official C if, while the Official A was an incumbent or a non-incumbent candidate, the individual now serving as the county Official C made political contributions to the Official A’s campaign and any improper understandings in contravention of the Ethics Act existed. Conditioned upon the assumption that no improper understandings existed, the Official A would be precluded from participating in the investigation or prosecution of the county Official C only if: (1) the political contributions were received while the Official A was an incumbent; and (2) the elements of a conflict of interest would exist. A conflict of interest would exist if the amount of the political contributions was greater than de minimis, and the political contributions were received at such a time and under such circumstances as to impact the Official A’s official action as to the county Official C. Confidential Opinion, 04-009 at 5. More recently, the Pennsylvania Supreme Court 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 as follows. Although you are not an incumbent Township Supervisor, you are currently a public official/public employee subject to the Ethics Act in your capacity as the Borough’s Building and Zoning Code Administrator. In your capacity as the Borough’s Building and Zoning Code Administrator, you would have a conflict of interest as to matter(s) involving the Developer or other(s) who would contribute to your campaign if: (1) the amount of such donor’s political contributions would be greater than de minimis; and (2) the political contributions would be received at such a time and under such circumstances as to impact your official action as to the donor. A violation of Section 1103(a) of the Ethics Act could only be found if the criteria for such a violation as set forth in Kistler, supra, would be met, that is, that you would be consciously aware of a private pecuniary benefit for yourself, a member of your immediate family, or a business with which you or a member of your immediate family is associated, and your action(s) would constitute one or more specific steps to attain that benefit. As noted above, in each instance of a conflict of interest, you would be required to abstain from participation. Groh, 13-532 May 8, 2013 Page 6 Finally, the fact that someone has made a contribution to a campaign for public office does not per se create an “understanding” that would be prohibited by Section 1103(b)/(c) of the Ethics Act. Wolfgang, supra. 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 applicabilitity of the Borough Code. Conclusion: As the Building and Zoning Code Administrator for the Borough of Edinboro (“Borough”), you are a public official/public employee 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 addition to serving as the Borough Building and Zoning Code Administrator, you are a candidate for the office of Township Supervisor in Millcreek Township; (2) prior to filing your nominating petition papers in March 2013, you were informed that a large land developer in your area (“the Developer”) would be contributing to your campaign; and (3) the Developer is a partner in a joint venture to construct an apartment complex in the Borough, you are advised as follows. In your capacity as the Borough’s Building and Zoning Code Administrator, you would have a conflict of interest as to matter(s) involving the Developer or other(s) who would contribute to your campaign if: (1) the amount of such donor’s political contributions would be greater than de minimis; and (2) the political contributions would be received at such a time and under such circumstances as to impact your official action as to the donor. A violation of Section 1103(a) of the Ethics Act could only be found if the criteria for such a violation as set forth in Kistler v. State Ethics Commission, 610 Pa. 516, 528, 22 A.3d 223, 231 (2011), would be met, that is, that you would be consciously aware of a private pecuniary benefit for yourself, a member of your immediate family, or a business with which you or a member of your immediate family is associated, and your action(s) would constitute one or more specific steps to attain that benefit. In each instance of a conflict of interest, you would be required to abstain from participation. The fact that someone has made a contribution to a campaign for public office does not per se create an “understanding” that would be prohibited by Section 1103(b)/(c) of the Ethics Act. 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 Groh, 13-532 May 8, 2013 Page 7 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