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HomeMy WebLinkAbout17-549 StedmanSTATE ETHICS COMMISSION 309 FINANCE BUILDING PO. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 733 -1610 1-800-932-0936 ADVICE OF COUNSEL August 2, 2017 To the Requester: Mr. Brett W. Stedman, Esquire Ekker, Kuster, McCall & Epstein, LLP Dear Mr. Stedman: This responds you requested an ( "Commission "). 17 -549 to your letters dated May 19, 2017, and June 7, 2017, by which advisory from the Pennsylvania State Ethics Commission Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 P­57-§. § 1101 et seq., would impose prohibitions or restrictions upon a city commissioner with regard to voting to rezone a property for the purposes of future commercial development, where the property is owned by the father -in -law of the daughter of the city commissioner. Facts: You have been authorized by Rita Ferringer ( "Ms. Ferringer ") to request an advisory from the Commission on her behalf. You have submitted facts that may be fairly summarized as follows. Ms. Ferringer is a Commissioner for the City of Hermitage ( "City "), located in Mercer County, Pennsylvania. The City Board of Commissioners ( "Board of Commissioners ") consists of five Members. Ms. Ferringer has a daughter who is married. The father -in -law of Ms. Ferringer's daughter owns a property located in the City. The father -in -law of Ms. Ferringer's daughter has filed an application for the Board of Commissioners to rezone his property for the purposes of future commercial development. The husband of Ms. Ferringer's daughter - -Ms. Ferringer's son -in -law- -has been active in attempting to obtain approval for the rezoning of his father's property. Ms. Ferringer's son -in -law attended a meeting of the Board of Commissioners on May 18, 2017, at which he stated that he was representing his father with regard to the request to rezone his father's property. During the May 18, 2017, meeting, a City Commissioner questioned whether Ms. Ferringer should be involved in voting on an issue in which Ms. Ferringer's son -in -law is representing his father's interests. Ms. Ferringer's son -in -law does not have an ownership interest in the aforesaid property at this time, but he may eventually obtain some interest in the property. Ms. FAX: (717) 787 -0806 0 Web Site: www.ethics.state.pa.us 0 e -mall ethicsCa?state.pa.us Stedman, 17 -549 August 2, 2017 Page 2 Ferringer's daughter does not have an economic interest in the aforesaid property at this time, but she may obtain a marital interest in the property in the future. Based upon the above submitted facts, you pose the following questions: (1) Whether the Ethics Act or any other law would prohibit Ms. Ferringer from votin g on the request to rezone the property owned by the father -in -law of Ms. Ferringer's daughter; and (2) Even if the Ethics Act would not prohibit Ms. Ferringer from voting on the request to rezone the aforesaid property, whether Ms. Ferringer would still be permitted to elect to recuse herself from the matter or otherwise abstain from voting on the matter due to a perceived bias or familial relationship to the applicant for rezoning of the property. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of ee Et5iics Act, 66 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. §§ 1'107(10 ), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all of the material facts. It is further initiallyy noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinionladvice 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. As a City Commissioner, Ms. Ferringer is a public official subject to the provisions of the Ethics Act. Sections 1103(a) and 11030) 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. 0) 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 Stedman 17 -549 ugust 2, 2017 Page 3 pprovided 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), 0). The following terms are defined in the Ethics Act as follows: § 1102. Definitions "Conflicf' 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. "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 officiallpublic 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 officiallpublic employee would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 11030? of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting conflict. Having established the above general principles, you are advised as follows. Stedman, 17 -549 August 2, 2017 Page 4 Subject to the statutory exclusions to the definition of "conflict" or "conflict of interest" as set forth in Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102, pursuant to Section 1103(a) of the Ethics Act, Ms. Ferringer would have a conflict of interest in matters before the Board of Commissioners that would financially impact her, a member of her immediate family, or a business with which she or a member of her immediate family is associated. Neither the father-in -law of Ms. Ferringer's daughter nor Ms. Ferringer's son -in -law is a member of Ms. Ferringer's "immediate family" as that term is defined by the Ethics Act. Cf., Pulice v. State Ethics Commission, 713 A.2d 161 (Pa. Cmwlth. 1998), allocatur denie , 557 Pa. 642, 732 A.2d 1211 998) (Holding that a relative not encompassed y�e family relationships listed in the Ethics Act's definition of the term "immediate family " ---in that case, a son -in -law —would not be considered a member of immediate family). Absent some basis for a conflict of interest such as a private pecuniary benefit to Ms. Ferringer, a member of her immediate family, or a business with which she or a member of her immediate family is associated, Ms. Ferringer would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting as a City Commissioner on the request to rezone the property owned by the father -in -law of Ms. Ferringer's daughter. You are further advised that this advisory is limited to addressing the restrictions and requirements of Sections 1103(a) and 11030) of the Ethics Act. The Commission does not have the authority to address: (1) other sources of law that may apply to voting conflicts; or (2) the propriety of proposes( conduct by Ms. Ferringer (such as recusing herself from the matter or abstaining from voting) when she would not have a conflict of interest with regard to voting on the request to rezone the property owned by the father - in-law of her daughter. 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 otther than tthe 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 City of Hermitage Home Rule Charter. Conclusion: Based upon the submitted facts that: (1 ) Rita Ferringer ( "Ms. Ferringer" 'his a Commissioner for the City of Hermitage ( "City "), located in Mercer County, Pennsylvania; (2) the City Board of Commissioners ( Board of Commissioners ") consists of five Members; (3) Ms. Ferringer has a daughter who is married; 4 the father -in -law of Ms. Ferringer's daughter owns a property located in the City; (5) the father -in -law of Ms. Ferringer's daughter has filed an application for the Board of Commissioners to rezone his property for the purposes of future commercial development; (6) the husband of Ms. Ferringer's daughter - -Ms. Ferringer's son -in -law -- has been active in attempting to obtain approval for the rezoning of his father's property; (7) Ms. Ferringer's son -in -law attended a meeting of the Board of Commissioners on May 18, 2017, at which he stated that he was representing his father with regard to the request to rezone his father's property; (8) during the May 18, 2017, meeting, a City Commissioner questioned whether Ms. Ferringer should be involved in voting on an issue in which Ms. Ferringer's son -in-law is representing his father's interests; (9) Ms. Ferringer's son -in -law does not have an ownership interest in the aforesaid proppertyy at this time, but he may eventually obtain some interest in the property; and (10) Ms. Ferringer's daughter does not have an economic interest in the aforesaid property at this time, but she may obtain a marital interest in the property in the future, you are advised as follows. As a City Commissioner, Ms. Ferringer 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. Subject to the statutory exclusions to the definition of "conflict" or "conflict of interest as set forth in Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102, pursuant to Stedman, 17 -549 August 2, 2017 Page 5 Section 1103(a) of the Ethics Act, Ms. Ferringer would have a conflict of interest in matters before the Board of Commissioners that would financially impact her, a member of her immediate family, or a business with which she or a member of her immediate family is associated. Neither the father -in -law of Ms. Ferringer's daughter nor Ms. Ferringer's son -in -law is a member of Ms. Ferringer's "immediate family" as that term is defined by the Ethics Act. Absent some basis for a conflict of interest such as a private pecuniary benefit to Ms. Ferringer, a member of her immediate family, or a business with which she or a member of her immediate family is associated, Ms. Ferringer would not have a conflict of interest under Section 1103(x) of the Ethics Act with regard to voting as a City Commissioner on the request to rezone the property owned by the father -in -law of Ms. Ferringer's daughter. 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 writingg and must be actually received at the Commission within thirty (30) days of the date Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission by hand deliverryy, 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. Sinc ly, F obin M. it tie Chief Counsel �7