HomeMy WebLinkAbout87-573 BlackMr. Robert P. S. Black
P. 0. Box 407, RD #1 87 -573
Lincoln University, PA 19352
Re: Township Supervisor Participation Zoning Ordinance, Owner Of Land
Affected By Ordinance
Dear Mr. Black:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PA 17120
TELEPHONE: (717) 783 -1610
May 20, 1987
ADVICE OF COUNSEL
This responds to your letter of April 15, 1987, wherein you requested the
advice of the State Ethics Commission.
Issue: Whether the State Ethics Act would present any prohibitions upon your
participation in a township decision to amend a zoning ordinance where you own
land that will be affected by the ordinance.
Facts: You currently serve as a township supervisor in Franklin Township,
Chester County. You indicate that the township currently has a 1982 zoning
ordinance which requires that the construction of a building serving as a
residence, insititutional use, or commercial establishment must be set back a
minimum of 100 ft. from any pipeline, right of way which transports flammable
or explosive material. The basis for the adoption of this particular
ordinance and requirement was to ensure safety within the township. You
indicate that because of recent developments within the township various
land- owners have sought an amendment to the zoning ordinance so as to
eliminate the 100 ft. setback requirement. These individuals have basically
asserted that the pipelines transporting materials in your township are
inherently safe. Another group of landowners wish to retain the 100 ft.
setback restriction for safety reasons. You indicate that you currently own
24 acres of land in the township which is crossed at one point by a pipeline.
Your land is primarily located in a wet -land area and you indicate that the
amendment would result in no change for your land use. You have indicated
that another township supervisor also has a similar potential conflict of
interest and as such two of the members of the township board of supervisors
could be prohibited from participating in this matter. As such, you have
requested the advice of the State Ethics Commission regarding the instant
situation and whether you may participate in the township's decisions in
relation to this matter.
Mr. Robert P. S. Black
May 20, 1987
Page 2
Discussion: As a township supervisor you are clearly a public official as
that term is defined in the State Ethics Act and as such your conduct must
conform to the requirements thereof. 65 P.S. §402; 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).
In addition to the above provision of law, the Ethics Act authorizes this
Commission to address other areas of possible conflicts of interest. 65 P.S.
§403(d). Such a conflict of interest would exist in a situation where a
public official attempts to serve one or more interests that are adverse.
See, Alfano, 80 -007. Generally, there is no doubt that public officials
including township supervisors, are generally precluded from participating in
any matter in which they have a personal pecuniary interest. See,
Commonwealth v. Raudenbush, 249 Pa. 86, 99 A. 555, (1915); Reckner v. German
Township, 341 Pa. 375, 19 A.2d 402, (1941). This Commission has, within the
purview of the State Ethics Act similarly determined that public officials may
not act upon a matter in which they have a personal financial interest. See,
King, 85 -025. In the instant situation the Commission is confronted with the
situation where a majority of the members of the township board of supervisors
may have an interest in the township's decision regarding the amendment to the
zoning ordinance. On the other hand, however, the members of the board of
supervisors reside in the township and are also landowners therein, and
constitute a majority of the board of supervisors. As such, if these members
were required to abstain from the township's decision in this matter, the
township would not be able to obtain a quorum and therefore the township would
be prohibited from taking official action on such matters.
Initially, it should be noted that in the foregoing situation, it is
doubtful whether any conflict of interest truly exists. As noted above, the
general law requires public officials to abstain from any matter wherein they
have a financial or pecuniary interest. Case law, however, as well as rulings
of the State Ethics Commission indicate that a public official is required to
abstain from participation in matters presented to his governmental body where
this interest is of a direct nature or the matter involves non - routine items.
See Reisinger, 146 -C; Stewart, 79 -070. Generally, courts have held that the
pecuniary interests must be direct, immediate and particular as distinct from
the interest that might be shared by a larger group or by the public in
general. See Reckner v. School District of German Township, supra, and
Commonwealth v. Raudenbush, supra, as a result, this Commission has previously
ruled for example, that members of a local school board could vote upon a
Mr. Robert P. S. Black
May 20, 1987
Page 4
From the very necessity of the case has grown the rule
that disqualification will not be permitted to destroy the
only tribunal with power in the premises. If the law
provides for a substitution of personnel on a board or
court, or if another tribunal existis to which resort may
be had, a disqualified member may not act. But when no
such provision is made, the law cannot be nullified or the
doors to justice barred because of prejudice or
disqualificationof a member of a court or a
administrative tribunal. Id. at 357.
In Kennett v. Levine, 50 Wash. 2d 212, 310 P.2d 244 (1957), the Court
held that the rule of necessity applied where a public body is given exclusive
jurisdiction over a matter and no substitute tribunal is provided by law. See
also Loughram v. F.T.C., 143 F.2d 431 (C.C.A. 8th 1944), where only one
tribunal is provided by law, that tribunal must be permitted to act under the
rule of necessity.
It is important to note that the rule of necessity is entirely
inapplicable when there exists, as stated above, a method of providing a
qualified tribunal, such as by exclusion from the tribunal of disqualified
members. See Pyatt v. Mayor and Council, 9 N.J. 548, 89 A.2d 1 (1952);
appointing a different membership, see Smith v. Dept. of Registration, 412
I11. 332, 106 N.E.2d 722 (1952); counting only the votes of the qualified
members, See Thompson v. City of Long Beach, 41 Cal. 2d 235, 259 P.2d 649
(1953); or resorting to another available tribunal, see Tumey v. Ohio, 273
U.S. 510 (1927). For the purposes of this Opinion, this Commission assumes
that none of the alternatives enumerated above exists by which the board may
form a quorum or obtain a majority vote and to take official action, and we
hold that the rule of necessity, under these appropriate circumstances, could
apply to allow participation /voting by an otherwise disqualified official.
In this light, we must discuss what constitutes a quorum, because for
purposes of invoking the rule of necessity, a sufficient number of supervisors
must be disqualified under the Ethics Act for the rule to apply. Unless
otherwise specified under Pennsylvania and common law, a quorum of the board
would be constituted by a majority of its members, that is at least two out of
three members, and official action could be taken by a positive vote of the
majority of the quorum, for example, three out of four. See DiGiacinto v.
City of Allentown, 486 Pa. 436, 406 A.2d 520, 522 (1979).
Unrestricted application of the rule of necessity, however, could result
in a situation where all of the three of four members who constitute a quorum
would normally be disqualified while the members not normally disqualified are
not present. While such a result might generally be permissible, the Ethics
Commission believes that in keeping with the letter and spirit of the Ethics
Mr. Robert P. S. Black
May 20, 1987
Page 3
matter involving collective bargaining agreement where the agreement would
affect the director's spouse who was employed by the school district. The
Commission opined in those decisions that the individual should not particpate
in the negotiations of the agreement but could vote on the final ratification
of the agreement where the interest of the spouse is affected in no unique way
separate and apart from the other members of the bargaining unit. See Krier,
84 -002; Blaney, 84 -003. Similarly, the Commission has rule that a member of a
city council may vote for a tax proposal which could remotely affect that
councilmember's private employer where the tax proposal did not affect the
employer in any way different than that of the general public. See Markham,
85 -013. There is, therefore, precedent to indicate that where the interest of
the public official is not direct, and immediate, no conflict of interest
would exist. In the current situation, you are a landowner in the township.
Action of the township may affect this land. All members of township board,
however, are similarly residents of the township generally. Thus, any action
that the board may take regarding taxes, improvements, the expenditure of
money would to some degree affect members of the board as they are all
residents of the township. Thus, as long as the township activity does not
specifically or directly relate or benefit the boardmembers, there appears to
be no conflict of interest.
In order to be complete, however, we will address the issue under the
assumption that the participation of the two councilmembers would constitute a
conflict of interest. In such a situation, this Commission has previously
invoked the common law of rule of necessity in order that the governmental
unit may properly perform its public function. By invoking the rule of
necessity which is discussed below, the members of the board will be able to
follow certain precautions and guidelines in relation to township decisions
regarding their actions. The Commission's use of this particular rule was
originally set forth in Hahalis, 83 -009.
Perhaps the most succinct statement of the rule of necessity is found in
Turner v. American Bar Association, 407 F. Supp. 451 (1975), where the Court
dismissed action brought against members of the federal judiciary and others
by plaintiffs who claimed they had a constitutional right to have unlicensed
lay counsel assist them in court proceedings. In its discussion, the Court
noted, "there is a maxim of law to the effect that where all are disqualified,
none are disqualified." Id. at 483, citing Evans v. Gore, 253 U.S. 245 (1920).
The Court continued, stating "the theory supporting this maxim is that if
disqualification operates so as to bar justice to the parties and no other
tribunal is available, the disqualified judge or judges may, by necessity,
proceed to judgment." Id. at 483.
Mr. Robert P. S. Black
May 20, 1987
Page 5
Act, the votes of the normally disqualified members must be tempered by the
vote or possible votes of members who have no conflict of interest and,
therefore, are not disqualified with respect to subject matter. In this
regard, the Commission believes that application of the rule of necessity must
be limited to situations where obtaining a quorum is possible only when
normally disqualified members are allowed to vote in addition to members not
disqualified and who do not have a conflict of interest in the matter at
hand.
Thus, where there are some board members who do not have a conflict of
interest, those members must be included in a quorum, and the rule of
necessity may be applied to allow the other normally disqualified members to
vote in addition to normally qualified members so that body may transact
official business.
Conclusion: Under the State Ethics Act, public officials generally may not
participate in any matter wherein they have a pecuniary interest. While there
in some question in the instant matter, as to whether the interest of the
supervisor in the instant situation is of the type that would require his
abstention, it is advised that the supervisors should proceed in the matter
set forth in this advice so as to avoid any potential conflict of interest.
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 be made, in
writing, to the Commission within 15 days of service of this Advice pursuant
to 51 Pa. Code 2.12.
S
o n J. • ino
Acting, eneral Counsel