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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