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HomeMy WebLinkAbout15-500 Hartman ADVICE OF COUNSEL January 29, 2015 Christopher J. Hartman, Esquire Hartman Shurr Valeriano P.O. Box 5828 1100 Berkshire Blvd., Suite 301 Wyomissing, PA 19610 15-500 Dear Mr. Hartman: This responds to your letters dated November 24, 2014, and December 2, 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 either of two public officials, both of whom are members of a municipal authority board and one of whom also serves as a township supervisor, with regard to participating in negotiations, meetings, discussions, deliberations, written and electronic communications, and/or vote(s) pertaining to a proposed sewage system in the township when: (1) the residence of one of these public officials might be required to be connected to the proposed sewage system; and (2) the residence of the parents of the other public official is located about one mile from one of the proposed locations for a sewage treatment plant for the proposed sewage system. Facts: You have been authorized by Gerald Lawrey (“Mr. Lawrey”) and Christopher M. Smith (“Mr. Smith”) to request an advisory from the Pennsylvania State Ethics Commission on their behalf. You have submitted facts that may be fairly summarized as follows. Robeson Township (“Township”) is located in Berks County, Pennsylvania. Mr. Lawrey and Mr. Smith are both Members of the Board of the Robeson Township Municipal Authority (“Authority”). Mr. Smith is also a Township Supervisor. A developer named “Nick & Les Inc.” (the “Developer”) owns an 81.3 acre property (the “Property”) located along Green Hills Road in the Township. The Developer has subdivision plan approval from the Township to construct a 55 unit residential development identified as “Green Hills Estates” (the “Proposed Development”) on the Property. The Allegheny Creek Corridor Act 537 Plan (the “Act 537 Plan”) is a Township- approved plan to provide sewage services to certain areas of the Township. The Act Hartman, 15-500 January 29, 2015 Page 2 537 Plan contains different scenarios, one of which would provide for public sewage services to the Proposed Development, 44 units located in the south side of an existing residential development known as “Green Hills Lake” (the “Existing Development”), and certain nearby areas of existing and potential development, for a total proposed sewer service area of up to 176 units. The Township and the Authority are in discussions with the Developer regarding the implementation of the Act 537 Plan and issues concerning a proposed sewage system (“Proposed Sewage System”), including where a new sewage treatment plant would be located, what costs the Developer would have to pay for construction of the new sewage treatment plant and connection to it, and which properties other than that of the Developer would be required to connect to the Proposed Sewage System. Mr. Lawrey’s personal residence is located in the south side of the Existing Development. You state that pursuant to the Act 537 Plan, Mr. Lawrey’s personal residence might be required to be connected to the Proposed Sewage System, in which event Mr. Lawrey would have to pay a tapping fee and user fees to the Township. Mr. Smith does not live in the area of the Existing Development. Mr. Smith’s parents live in a residence located about one mile from one of the proposed locations for a sewage treatment plant for the Proposed Sewage System. Several residences, including that of Mr. Smith’s parents, use a shared residential driveway/private road which intersects with Green Hills Road across from the aforesaid proposed sewage treatment plant location. The property of Mr. Smith’s parents is not included within any version of a sewage collection system proposed by the Act 537 Plan. You state that the Developer has asserted that Mr. Lawrey and Mr. Smith have conflicts of interest under the Ethics Act which would prevent them from participating in deliberations or votes on matters pertaining to the Proposed Sewage System. Based upon the above submitted facts, you ask whether the Ethics Act would require Mr. Lawrey, in his capacity as an Authority Board Member, and Mr. Smith, in his capacity as an Authority Board Member and/or a Township Supervisor: (1) to be excluded from negotiations, meetings, discussions, deliberations, and written and electronic communications among the Township Board of Supervisors and/or Authority Board Members and with the Township Manager and Township Solicitor pertaining to the Proposed Sewage System; or (2) to abstain from any vote on matters pertaining to the Proposed Sewage System. 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. In his position as an Authority Board Member, Mr. Lawrey is a public official subject to the provisions of the Ethics Act. In each of his positions as an Authority Board Member and a Township Supervisor, Mr. Smith is a public official subject to the provisions of the Ethics Act. Hartman, 15-500 January 29, 2015 Page 3 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 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 Hartman, 15-500 January 29, 2015 Page 4 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. Thus, a public official’s participation in negotiations, meetings, discussions, deliberations, written and electronic communications, and/or vote(s) may satisfy the element of “use of authority of office.” 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. 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, Hartman, 15-500 January 29, 2015 Page 5 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. In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. Mr. Smith’s parents are members of his “immediate family” as that term is defined in the Ethics Act. As to each public official on whose behalf you have inquired--that is, Mr. Lawrey in his capacity as an Authority Board Member and Mr. Smith in each of his capacities as an Authority Board Member and a Township Supervisor--such public official would have a conflict of interest in matter(s) pertaining to the Proposed Sewage System if: (1) he would be consciously aware of a private pecuniary benefit for himself, member(s) of his immediate family such as his parents, or a business with which he or a member of his immediate family is associated; (2) his 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 would be applicable. Cf., Kistler, supra. The submitted facts do not enable a conclusive determination as to whether the de minimis exclusion or the class/subclass exclusion would be applicable as to any potential financial impact upon Mr. Lawrey or Mr. Smith’s parents. It appears unlikely that a potential financial impact upon Mr. Lawrey would be de minimis, given the submitted fact that if Mr. Lawrey’s residence would be required to be connected to the Proposed Sewage System, Mr. Lawrey would have to pay a tapping fee and user fees to the Township. However, the submitted facts do not quantify any potential financial impact upon either Mr. Lawrey or Mr. Smith’s parents. Likewise, the submitted facts are insufficient to enable a conclusive determination as to whether either Mr. Lawrey or Mr. Smith’s parents would belong to a class/subclass of similarly situated homeowners and would be affected to the same degree as the other members of such a class/subclass. In each instance of a conflict of interest, the aforesaid public official(s) with the conflict--that is, Mr. Lawrey and/or Mr. Smith--would be required to abstain from participation, which would include voting unless a statutory exception 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 observed 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 Municipality Authorities Act or the Second Class Township Code. Conclusion: Based upon the submitted facts that: (1) Robeson Township (“Township”) is located in Berks County, Pennsylvania; (2) Gerald Lawrey (“Mr. Lawrey”) is a Member of the Board of the Robeson Township Municipal Authority (“Authority”); (3) Christopher M. Smith (“Mr. Smith”) is a Member of the Authority Board, and he is also a Township Supervisor; (4) a developer named “Nick & Les Inc.” (the “Developer”) owns an 81.3 acre property (the “Property”) located along Green Hills Road in the Township; (5) the Developer has subdivision plan approval from the Hartman, 15-500 January 29, 2015 Page 6 Township to construct a 55 unit residential development identified as “Green Hills Estates” (the “Proposed Development”) on the Property; (6) the Allegheny Creek Corridor Act 537 Plan (the “Act 537 Plan”) is a Township-approved plan to provide sewage services to certain areas of the Township; (7) the Act 537 Plan contains different scenarios, one of which would provide for public sewage services to the Proposed Development, 44 units located in the south side of an existing residential development known as “Green Hills Lake” (the “Existing Development”), and certain nearby areas of existing and potential development, for a total proposed sewer service area of up to 176 units; (8) the Township and the Authority are in discussions with the Developer regarding the implementation of the Act 537 Plan and issues concerning a proposed sewage system (“Proposed Sewage System”), including where a new sewage treatment plant would be located, what costs the Developer would have to pay for construction of the new sewage treatment plant and connection to it, and which properties other than that of the Developer would be required to connect to the Proposed Sewage System; (9) Mr. Lawrey’s personal residence is located in the south side of the Existing Development; (10) pursuant to the Act 537 Plan, Mr. Lawrey’s personal residence might be required to be connected to the Proposed Sewage System, in which event Mr. Lawrey would have to pay a tapping fee and user fees to the Township; (11) Mr. Smith does not live in the area of the Existing Development; (12) Mr. Smith’s parents live in a residence located about one mile from one of the proposed locations for a sewage treatment plant for the Proposed Sewage System; (13) several residences, including that of Mr. Smith’s parents, use a shared residential driveway/private road which intersects with Green Hills Road across from the aforesaid proposed sewage treatment plant location; (14) the property of Mr. Smith’s parents is not included within any version of a sewage collection system proposed by the Act 537 Plan; and (15) the Developer has asserted that Mr. Lawrey and Mr. Smith have conflicts of interest under the Ethics Act which would prevent them from participating in deliberations or votes on matters pertaining to the Proposed Sewage System, you are advised as follows. In his position as an Authority Board Member, Mr. Lawrey 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. In each of his positions as an Authority Board Member and a Township Supervisor, Mr. Smith is a public official subject to the provisions of the Ethics Act. Subject to the statutory exclusions to the Ethics Act’s definition of the term “conflict” or “conflict of interest,” 65 Pa.C.S. § 1102--also referred to herein as the “de minimis exclusion” and the “class/subclass exclusion”--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. A public official’s participation in negotiations, meetings, discussions, deliberations, written and electronic communications, and/or vote(s) may satisfy the element of “use of authority of office.” As to each public official on whose behalf you have inquired--that is, Mr. Lawrey in his capacity as an Authority Board Member and Mr. Smith in each of his capacities as an Authority Board Member and a Township Supervisor--such public official would have a conflict of interest in matter(s) pertaining to the Proposed Sewage System if: (1) he would be consciously aware of a private pecuniary benefit for himself, member(s) of his immediate family such as his parents, or a business with which he or a member of his immediate family is associated; (2) his 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 would be applicable. Hartman, 15-500 January 29, 2015 Page 7 The submitted facts do not enable a conclusive determination as to whether the de minimis exclusion or the class/subclass exclusion would be applicable as to any potential financial impact upon Mr. Lawrey or Mr. Smith’s parents. It appears unlikely that a potential financial impact upon Mr. Lawrey would be de minimis, given the submitted fact that if Mr. Lawrey’s residence would be required to be connected to the Proposed Sewage System, Mr. Lawrey would have to pay a tapping fee and user fees to the Township. However, the submitted facts do not quantify any potential financial impact upon either Mr. Lawrey or Mr. Smith’s parents. Likewise, the submitted facts are insufficient to enable a conclusive determination as to whether either Mr. Lawrey or Mr. Smith’s parents would belong to a class/subclass of similarly situated homeowners and would be affected to the same degree as the other members of such a class/subclass. In each instance of a conflict of interest, the aforesaid public official(s) with the conflict--that is, Mr. Lawrey and/or Mr. Smith--would be required to abstain from participation, which would include voting unless a statutory exception 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 observed 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 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