HomeMy WebLinkAbout14-525 Pierce
ADVICE OF COUNSEL
June 18, 2014
Michael P. Pierce, Esquire
15 Bonnie Lane
Media, PA 19063
14-525
Dear Mr. Pierce:
This responds to your letter dated April 16, 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 an individual
serving as a member and president of a borough council with regard to participating in
matter(s) involving an amendment to the borough zoning ordinance that would increase
the density of housing development permitted on certain tracts of land within the
borough, where: (1) in a private capacity, the individual is an attorney with a general
practice in which he has represented various developers; (2) the individual has in the
past represented a builder who is one of the partners in the developer that is seeking
the amendment and that might desire to build housing on tract(s) of land which would
be affected by the amendment; and (3) the individual has been consulted in his private
practice by an owner of a tract of land that might be affected by the amendment with
regard to issues unrelated to the amendment.
Facts:
As a Member and President of Council for Chester Heights Borough
(“Borough”), located in Delaware County, Pennsylvania, you request an advisory from
the Pennsylvania State Ethics Commission based upon submitted facts that may be
fairly summarized as follows.
An amendment (“Amendment”) to the Borough Zoning Ordinance is pending
before Borough Council. The Amendment would increase the density of housing
development (“Proposed Housing”) permitted on certain tracts of land within the
Borough. The Proposed Housing would be allowed through a conditional use hearing
during which the Borough could attach certain conditions to the Proposed Housing.
The Amendment was presented to the Borough by an attorney representing a
developer (the “Developer”) which might desire to build the Proposed Housing on
tract(s) of land that would be affected by the Amendment. Although there is no formal
plan regarding the Developer’s potential development of such tract(s) before Borough
Council at this time, discussions have taken place and a concept or sketch plan has
been presented with regard to such potential development. You state that the
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June 18, 2014
Page 2
Developer is in some type of partnership and that one of the partners is a local builder
(the “Builder”).
In a private capacity, you are an attorney with a general practice in which you
have represented various developers. You have in the past represented the Builder for
various issues that arose in other municipalities. You state that you have not
represented the Builder in several years and do not have any pending matters or open
cases for him. You have also been consulted in your private practice by an owner (the
“Owner”) of a tract of land that might be affected by the Amendment with regard to
issues unrelated to the Amendment, including business matters related to a care facility
run by the Owner.
Based upon the above submitted facts, you ask whether the Ethics Act would
permit you to be involved in matter(s) pertaining to the Amendment and what disclosure
steps, if any, should you undertake prior to any vote on the Amendment.
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 President of Borough Council, 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
Pierce, 14-525
June 18, 2014
Page 3
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.
Subject to the statutory exclusions to the Ethics Act’s definition of the term
“conflict” or “conflict of interest,” 65 Pa.C.S. § 1102, 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.
Per the Pennsylvania Supreme Court’s decision in Kistler v. State Ethics
Commission, 610 Pa. 516, 22 A.3d 223 (2011), in order to violate Section 1103(a) of the
Ethics Act, a public official/public employee:
… must act in such a way as to put his \[office/public position\]
to the purpose of obtaining for himself a private pecuniary
benefit. Such directed action implies awareness on the part
of the \[public official/public employee\] of the potential
pecuniary benefit as well as the motivation to obtain that
benefit for himself.
Kistler, supra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics
Act, a public official/public employee “must be consciously aware of a private pecuniary
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June 18, 2014
Page 4
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.” Id., 610 Pa. at 528, 22 A.3d at 231.
Based upon Kistler, the existence of a violation of Section 1103(a) would depend
upon the circumstances in a given case. Raphael, Opinion 13-003.
A conflict of interest would not exist to the extent the “de minimis exclusion”
and/or the “class/subclass exclusion” set forth within the Ethics Act’s definition of the
term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, would be applicable.
The de minimis exclusion precludes a finding of conflict of interest as to an action
having a de minimis (insignificant) economic impact. Thus, when a matter that would
otherwise constitute a conflict of interest under the Ethics Act would have an
insignificant economic impact, a conflict would not exist and Section 1103(a) of the
Ethics Act would not be implicated. See, Kolb, Order 1322; Schweinsburg, Order 900.
In order for the class/subclass exclusion to apply, two criteria must be met: (1)
the affected public official/public employee, immediate family member, or business with
which the public official/public employee or immediate family member is associated
must be a member of a class consisting of the general public or a true subclass
consisting of more than one member; and (2) the public official/public employee,
immediate family member, or business with which the public official/public employee or
immediate family member is associated must be affected "to the same degree" (in no
way differently) than the other members of the class/subclass. 65 Pa.C.S. § 1102; see,
Kablack, Opinion 02-003; Rubenstein, Opinion 01-007. The first criterion of the
exclusion is satisfied where the members of the proposed subclass are similarly
situated as the result of relevant shared characteristics. The second criterion of the
exclusion is satisfied where the individual/business in question and the other members
of the class/subclass are reasonably affected to the same degree by the proposed
action. Kablack, supra.
Having established the above general principles, you are advised as follows.
Pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of
interest and would violate Section 1103(a) of the Ethics Act by participating in your
official capacity as a Member and President of Borough Council in matter(s) involving
the Amendment if: (1) you would be consciously aware of a private pecuniary benefit for
you, a member of your immediate family, or a business with which you or a member of
your immediate family is associated; (2) your action(s) would constitute one or more
specific steps to attain that benefit; and (3) neither the de minimis exclusion nor the
class/subclass exclusion set forth within the Ethics Act’s definition of the term "conflict"
or "conflict of interest," 65 Pa.C.S. § 1102, would be applicable.
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
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 or the Rules of Professional Conduct.
Conclusion:
As a Member and President of Council for Chester Heights
Borough (“Borough”), located in Delaware County, Pennsylvania, you are a public
official subject to the provisions of the Public Official and Employee Ethics Act (“Ethics
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June 18, 2014
Page 5
Act”), 65 Pa.C.S. § 1101 et seq. Based upon the submitted facts that: (1) an
amendment (“Amendment”) to the Borough Zoning Ordinance is pending before
Borough Council; (2) the Amendment would increase the density of housing
development (“Proposed Housing”) permitted on certain tracts of land within the
Borough; (3) the Proposed Housing would be allowed through a conditional use hearing
during which the Borough could attach certain conditions to the Proposed Housing; (4)
the Amendment was presented to the Borough by an attorney representing a developer
(the “Developer”) which might desire to build the Proposed Housing on tract(s) of land
that would be affected by the Amendment; (5) although there is no formal plan
regarding the Developer’s potential development of such tract(s) before Borough
Council at this time, discussions have taken place and a concept or sketch plan has
been presented with regard to such potential development; (6) the Developer is in some
type of partnership, and one of the partners is a local builder (the “Builder”); (7) in a
private capacity, you are an attorney with a general practice in which you have
represented various developers; (8) you have in the past represented the Builder for
various issues that arose in other municipalities; (9) you have not represented the
Builder in several years and do not have any pending matters or open cases for him;
and (10), you have also been consulted in your private practice by an owner (the
“Owner”) of a tract of land that might be affected by the Amendment with regard to
issues unrelated to the Amendment, including business matters related to a care facility
run by the Owner, you are advised as follows.
Pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of
interest and would violate Section 1103(a) of the Ethics Act by participating in your
official capacity as a Member and President of Borough Council in matter(s) involving
the Amendment if: (1) you would be consciously aware of a private pecuniary benefit for
you, a member of your immediate family, or a business with which you or a member of
your immediate family is associated; (2) your action(s) would constitute one or more
specific steps to attain that benefit; and (3) neither the de minimis exclusion nor the
class/subclass exclusion set forth within the Ethics Act’s definition of the term "conflict"
or "conflict of interest," 65 Pa.C.S. § 1102, would be applicable. 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
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June 18, 2014
Page 6
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