Loading...
HomeMy WebLinkAbout14-519 Frack ADVICE OF COUNSEL May 14, 2014 Bruce Frack, Vice Chairman Allen Township Supervisors 4714 Indian Trail Road Northampton, PA 18067-9492 14-519 Dear Mr. Frack: This responds to your letter dated March 17, 2014, 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 member and vice chairman of a township board of supervisors, who is also an employee of an airport authority, with regard to voting on a subdivision plan, a land development plan, or other matters involving property owned by the airport authority. Facts: As a Member and Vice Chairman of the Board of Supervisors (“Board of Supervisors”) of Allen Township (“Township”), located in Northampton County, Pennsylvania, you request an advisory from the Pennsylvania State Ethics Commission. You have submitted facts that may be fairly summarized as follows. The Township is governed by a five-Member Board of Supervisors. Approximately three months ago, the Township received applications for a subdivision plan (“Subdivision Plan”) and a land development plan (“Land Development Plan”) for a portion of property owned by the Lehigh Northampton Airport Authority (“Authority”). A master development agreement exists between the Authority and Rockefeller Development Group which outlines terms governing the disposition of certain property currently owned by the Authority. The Subdivision Plan and the Land Development Plan are currently under review by the Allen Township Planning Commission. You have been employed in the position of Superintendent of Maintenance for the Authority since 1983. You state that it has been brought to your attention that a conflict of interest might exist if you would be required to vote on subdivision plans, land development plans, or issues regarding property currently owned by the Authority. Based upon the above submitted facts, you pose the following questions: Frack, 14-519 May 14, 2014 Page 2 (1) Whether you would be permitted to vote on the Subdivision Plan, the Land Development Plan, or other matter(s) involving the subdivision and land development of property owned by the Authority; and (2) If you would have a conflict of interest under the Ethics Act, whether you would be permitted to vote to break a 2-2 tie vote of the other four Township Supervisors on the Subdivision Plan or the Land Development Plan provided that you would disclose your employment with the Authority. 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 and Vice Chairman of the Board of Supervisors, you are 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). The following terms are defined in the Ethics Act as follows: Frack, 14-519 May 14, 2014 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. "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. Frack, 14-519 May 14, 2014 Page 4 Having established the above general principles, your specific questions shall now be considered. In response to your first question, you are advised as follows. Since the Authority is a “political subdivision” and not a “business” as defined by the Ethics Act, you would not have a conflict of interest under Section 1103(a) of the Ethics Act in matters before the Board of Supervisors that would financially impact the Authority but that would not financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. A pecuniary benefit flowing solely to a governmental entity such as the Authority 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 you, a member of your immediate family, or a business with which you or a member of your immediate family is associated, you would not have a conflict of interest under Section 1103(a) of the Ethics Act in voting as a Township Supervisor on the Subdivision Plan, the Land Development Plan, or other matter(s) involving the subdivision and land development of property owned by the Authority. In response to your second question, you are advised that because the Board of Supervisors is comprised of five Members, the exception in Section 1103(j) of the Ethics Act for breaking a tie vote despite a conflict of interest would not permit you to vote to break a 2-2 tie vote of the other four Township Supervisors where you would have a conflict of interest because such exception is available exclusively to members of three member governing bodies who first abstain and disclose their conflicts as required by Section 1103(j) of the Ethics Act. See, Pavlovic, Opinion 02-005. 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 Second Class Township Code. Conclusion: As a Member and Vice Chairman of the Board of Supervisors (“Board of Supervisors”) of Allen Township (“Township”), located in Northampton 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) the Township is governed by a five-Member Board of Supervisors; (2) approximately three months ago, the Township received applications for a subdivision plan (“Subdivision Plan”) and a land development plan (“Land Development Plan”) for a portion of property owned by the Lehigh Northampton Airport Authority (“Authority”); (3) a master development agreement exists between the Authority and Rockefeller Development Group which outlines terms governing the disposition of certain property currently owned by the Authority; (4) the Subdivision Plan and the Land Development Plan are currently under review by the Allen Township Planning Commission; and (5) you have been employed in the position of Superintendent of Maintenance for the Authority since 1983, you are advised as follows. Since the Authority is a “political subdivision” and not a “business” as defined by the Ethics Act, you would not have a conflict of interest under Section 1103(a) of the Ethics Act in matters before the Board of Supervisors that would financially impact the Authority but that would not financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. A pecuniary benefit flowing solely to a governmental entity such as the Authority would not form the basis for a conflict of interest under Section 1103(a) of the Ethics Act. Absent some basis for a conflict of interest such as a private pecuniary benefit to you, a Frack, 14-519 May 14, 2014 Page 5 member of your immediate family, or a business with which you or a member of your immediate family is associated, you would not have a conflict of interest under Section 1103(a) of the Ethics Act in voting as a Township Supervisor on the Subdivision Plan, the Land Development Plan, or other matter(s) involving the subdivision and land development of property owned by the Authority. Because the Board of Supervisors is comprised of five Members, the exception in Section 1103(j) of the Ethics Act for breaking a tie vote despite a conflict of interest would not permit you to vote to break a 2-2 tie vote of the other four Township Supervisors where you would have a conflict of interest because such exception is available exclusively to members of three member governing bodies who first abstain and disclose their conflicts as required by Section 1103(j) 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 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