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HomeMy WebLinkAbout86-516 JordanMr. John T. Jordan 929 Spri ngwood Drive 86 -516 West Chester, PA 19382 Re: Township Supervisor, Participation Township Ordinance, Interest in Ordinance Dear Mr. Jordan: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 Fehruary 12, 1986 ADVICE OF COUNSEL This responds to your letter of December 18, 1985, wherein you requested the advice of the State Ethics Commission. Issue: Whether the Ethics Act presents any prohihition upon the participation of a township supervisor in a township decision to implement an Argricultural Security Area when the supervisor is a farmer in the township. Facts: On behalf of the township board of supervisors for the Township of East Bradford, you have requested the advice of the State Ethics Commission regarding the above issue. You indicate that Joel Colvin, a Township Supervisor, is engaged in the husiness of farming in the township. You have further advised that the township has recently considered the implementation of an Agricultural Security District pursuant to the Agricultural Area Security Law. 3 P.S. , 5901 et. seq. This Agricultural District was implemented hy Ordinance. Mr. Colvin did not participate in the township's passage of that ordinance. The purpose for his abstention in this matter was hased upon the fact that certain citizens had raised objections to Mr. Colvin's potential conflict of interest in this You indicate that Mr. Colvin owns approximately 15 acres of farmland in East Bradford Township. You further indicate that Mr. Colvin farms on approximately 1,200 acres of land in the township. The land farmed hy Mr. Colvin is rented from area landowners. You indicate that 650 acres of the land that Mr. Colvin currently farms is within the Agricultural Security District and that 550 acres are outside of the District. Mr. John T. Jordan February 12, 1Q86 Page 2 In addition to the foregoing, you indicate that the township has also, in the past, considered the implementation of a zoning ordinance that would require a 200 foot set hack area between land within the Agricultural Security District and adjoining land. Within this 200 foot set back there would be no development allowed. This area of space would, thus, be a buffer between the agricultural area and the adjoining land. You do not indicate whether the 200 foot set back would be designated as part of the agricultural land or as part of the land adjoining land. You have requested the advice of the State Ethics Commission as to whether there would be any conflict of interest if rir. Colvin were to participate in the township's consideration of these decisions relating to the Agricultural District. Mr. Colvin, as well as the third member of the hoard of supervisors, have joined in your request for this advice. Discussion: At the outset, it must be noted the State Ethics Commission may only address the issue presented within the purview of the State Ethics Act. 65 P.S. 5401 et seq. The Commission will not address your question under other codes of conduct. As a township supervisor in a township of the second class, Mr. Colvin is clearly a public official within the definition of public official as that term is provided in the State Ethics Act. 65 P.S. .5402. As such, his conduct must conform to the requirements of the Act. Sowers, 80 -050. Generally, the Ethics Act provides as follows: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Within the above provision of law, a public official may not use his position in order to obtain any financial gain for himself, a memher of his family, or a business with which he is associated. Similarly, a public official may not use confidential information obtained in his public position for this purpose. The Ethics Act also provides that this Commission may address other areas of possible conflict.. See 65 P.S. 5.403(d). The parameters of the activities encompassed by this provision of law are generally determined by reviewing the intent and purpose of the State Ethics Act. The State Ethics Act was promulgated in order to insure that the financial interest of public officials Mr. John T. Jordan February 12, 1986 Page 3 do not present a conflict of interest with their public trust. 65 P.S. §401. As a result, this Commission has previously ruled that puhlic officials may not act in a manner so as to serve interest that are adverse. See Alfano, 80 -007. In order to determine whether the actions of Mr. Colvin could present a conflict of interest, we must review the applicable law and purpose of the implementation of an Agricultural District in order to determine if Mr. Colvin would obtain or secure any type of financial gain through the implementation of such District or if his actions would, in any way, occasion a conflict of i nterest. The Agricultural Area Security Law was enacted in order to conserve, protect and encourage the development and improvement of agricultural lands in the Commonwealth of Pennsylvania. Pursuant to this enactment, the governing body of a local government, such as the township board of supervisors, may establish an agricultural area for the purpose of maintaining the agricultural use of that area in the township. The implementation of an Agricultural District is within the discretion and authority of the governing body, i.e. the township board of supervisors in this case, and the request for such a designated district may be made by any owner or owners of land that submits such a proposal for consideration to the governing body. The governing hody, in considering such a proposal, must evaluate the various factors to be considered. Many of these factors are set forth in the Agricultural Security Law. 3 P.S. §907. Participation by land owners in the Agricultural District is voluntary. However, the addition or deletion of land in the agricultural area may only occur after seven years or whenever the agricultural area is subject to review by the township hoard of supervisors. There is no doubt that pursuant to the Agricultural Area Security Law, the township board of supervisors has the ultimate authority and power to implement an Agricultural Security Area and approve the inclusion of specific lands in the local jurisdiction within that area if requested by the citizens of the township. Mr. Colvin is a member of the township hoard of supervisors and has a public duty to review and consider such a request in accordance with the law and based upon the evaluation criteria set forth in the law. On the other hand, Mr. Colvin, as a farmer, has a vested interest in insuring that sufficient land is available in order for him to conduct his livelihood. Clearly, if land is designated as agricultural security land and the use of such land is specifically and expressly reserved for agricultural purposes, Mr. Colvin would reap a financial benefit in the form of continued husiness security. In the instant situation, Mr. Colvin farms 650 acres of land within the Agricultural Security District. This is approximately 30% of the total land in the District. There is no doubt, that the passage of an ordinance which restricted the use of this land as agricultural, could inure to the benefit of Mr. Colvin. Thus, if the citizens of the township presented an application or proposal to the township board of supervisors requesting that Mr. John T. Jordan February 12, 1986 Page 4 their land be designated as an Agricultural Area Security District and at the time of this proposal P1r. Colvin was the farmer of this land or had a reasonable belief that he would be leasing this land for fanning purposes, he would be placed in a position of conflicting interest. On the one hand, he would have a financial interest in insuring that this particular land which he actually farmed or had a reasonable expectation that he would be farming, remain as an agricultural area. On the other hand, as a public official, he has the duty and responsibility of acting in the interest of the general public, rather than in his own interest. Similarly, if Mr. Colvin was involved in the original proposal presented to the township, or participated to any extent in convincing the owners of land which he rented to submit such a proposal, he then would he in a conflicting position if he were to subsequently make a decision as to the designation of that land as an agricultural district. As a result, if Mr. Colvin had an actual interest either by ownership or rental agreement in the land that was proposed to the board of supervisors as an agricultural district, he must abstain from participating in deciding whether that land should be designated as such a district. On the other hand, the mere fact that Mr. Colvin is a fanner would not preclude him from acting in his official capacity to designate land as an Agricultural Security Area if he has no interest either direct or indirect in that land. Thus, Mr. Colvin could participate in a matter if it were presented to the board of supervisors where he did not either own the land, rent the land, or could reasonably anticipate being in an ownership or lessee position. As a result of the foregoing, and within provisions 3(a) and 3(d) of the State Ethics Act, it is advised that Mr. Colvin acted properly in abstaining from the township's decision relating to the designation of an Agricultural Security Area if he stood in the relationship as noted above. He should similarly be abstained in future situations if the above referenced factors are present. With relation to the issue of the 200 foot set back, a similar analysis is appropriate. Thus, if Mr. Colvin has an interest in the land in which the 200 foot set back is proposed, he should abstain from participating in the decision to have that set back implemented. Conclusion: A township supervisor is a public official within the purview of the State Ethics Act. Such a supervisor may not participate in the decision to designate certain township land as an agricultural security area if that supervisor either owns or leases the land or has a reasonable expectation that he would own or lease the land. There is no prohibition upon this supervisors participation in such a matter where he does not either own or lease the land. Mr. John T. Jordan February 12, 1986 Page 5 Pursuant to Section 7(9)(ii), this 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, providing the requestor 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 request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must he made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. L John J.-- onti no Gene,ca1 Counsel