HomeMy WebLinkAbout14-529 Lee
ADVICE OF COUNSEL
July 1, 2014
Christopher Lee
Harris Township Supervisor
P.O. Box 174
Boalsburg, PA 16827
14-529
Dear Mr. Lee:
This responds to your letters dated May 6, 2014, and May 8, 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 township supervisor with regard to participating in discussions or actions by
the township board of supervisors involving the subdivision plan for certain land where:
(1) the land was formerly owned by the individual’s family and was taken by a quiet title
action; and (2) the individual and his siblings believe that the quiet title process was
flawed and can be reopened without difficulty, and they are confident that if such course
of action would be pursued, ownership of the land would be found to lie with them and
not the land’s current owners.
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 Supervisor for Harris Township (“Township”). The Township Board of
Supervisors (“Board of Supervisors”) is currently considering a subdivision plan that
concerns land (the “Land”) formerly owned by your family. The Land was taken by a
quiet title action in the fall of 2013. You and your siblings believe that the quiet title
process was flawed and can be reopened without difficulty and are confident that if such
course of action would be pursued, ownership of the Land would be found to lie with
you and your siblings and not the Land’s current owners.
You state that when the Board of Supervisors discussed the subdivision plan for
the Land on April 23, 2014, you recused yourself from deliberation on the matter. The
Board of Supervisors will again consider the subdivision plan for the Land at a later
date.
Based upon the above submitted facts, you ask whether the Ethics Act would
permit you to participate in discussions and actions of the Board of Supervisors
involving the subdivision plan for the Land. You state that you have not previously
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July 1, 2014
Page 2
acted as a Township Supervisor in matters involving the Land and that you will not do
so 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.
As a Township Supervisor, 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:
§ 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
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July 1, 2014
Page 3
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.
"Immediate family."
A parent, spouse, child, brother
or sister.
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
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.
Having established the above general principles, you are advised as follows.
Your siblings are members of your “immediate family” as that term is defined in
the Ethics Act. The submitted facts are insufficient to enable a conclusive determination
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July 1, 2014
Page 4
as to whether the elements of a conflict of interest would be established if you would
participate in discussions or actions of the Board of Supervisors involving the
subdivision plan for the Land. The submitted facts do not indicate whether you and/or
your siblings intend to seek to reopen the aforesaid quiet title process or whether the
approval or disapproval of the subdivision plan would financially impact you and/or your
siblings. Therefore, you are advised that a conflict of interest would exist and you would
violate Section 1103(a) of the Ethics Act if: (1) you would be consciously aware of a
private pecuniary benefit for you, member(s) of your immediate family, or a business
with which you or member(s) of your immediate family are associated; (2) your official
action 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 Second Class Township Code or case law as to bias.
Conclusion:
As a Supervisor for Harris Township (“Township”), 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
Board of Supervisors (“Board of Supervisors”) is currently considering a subdivision
plan that concerns land (the “Land”) formerly owned by your family; (2) the Land was
taken by a quiet title action in the fall of 2013; (3) you and your siblings believe that the
quiet title process was flawed and can be reopened without difficulty and are confident
that if such course of action would be pursued, ownership of the Land would be found to
lie with you and your siblings and not the Land’s current owners; (4) when the Board of
Supervisors discussed the subdivision plan for the Land on April 23, 2014, you recused
yourself from deliberation on the matter; and (5) the Board of Supervisors will again
consider the subdivision plan for the Land at a later date, you are advised as follows.
Your siblings are members of your “immediate family” as that term is defined in
the Ethics Act. The submitted facts are insufficient to enable a conclusive determination
as to whether the elements of a conflict of interest would be established if you would
participate in discussions or actions of the Board of Supervisors involving the
subdivision plan for the Land. The submitted facts do not indicate whether you and/or
your siblings intend to seek to reopen the aforesaid quiet title process or whether the
approval or disapproval of the subdivision plan would financially impact you and/or your
siblings. Therefore, you are advised that a conflict of interest would exist and you would
violate Section 1103(a) of the Ethics Act if: (1) you would be consciously aware of a
private pecuniary benefit for you, member(s) of your immediate family, or a business
with which you or member(s) of your immediate family are associated; (2) your official
action 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
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July 1, 2014
Page 5
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
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