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HomeMy WebLinkAbout88-627 GoodallSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 12, 1988 H. Amos Goodall, Jr., Esquire 88 -627 327 South Atherton Street State College, PA 16801 Re: Conflict of Interest, Township Supervisors, Rule of Necessity, Voting on Approval Subdivision Application Dear Mr. Goodall: This responds to your letter of August 16, 1988, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act presents any prohibitions or restrictions upon Township Supervisors from voting to approve a subdivision application in the township when the three supervisors have a potential conflict as to the subdivision. Facts: You state that you are the solicitor to the Board of Supervisors of Halfmoon Township, in Centre County, and that said board is comprised of three members who live and work in the township which is a developing member of Centre Region Council of Governments. After noting that the supervisors have an application before them to approve a development known as Quail Run which received no action by the township planning commission within the forty -five day limit, you state that the application was listed on the August 8, 1988 agenda of the township without formal recommendation by the planning commission although the Centre County and Centre Regional Planning Commissions have commented upon same. You then advise that the wife of the Chairman of the Board of Supervisors is in the process of developing a parcel of land near Quail Run and that the second supervisor who is the secretary of the board is developing a second parcel nearby and lastly the third supervisor who is a member of the township's planning commission is developing property in another part of the township which is presently under contract with a developer to farm the land which is proposed for development. After noting that one recommendation for Quail Run H. Amos Goodall, Jr. Esquire September 12, 1988 Page 2 concerns a change in the street design so that they may serve one or both parcels, you indicate that the developer is unwilling to amend his plan to conform to that suggestion. You then state that the supervisors publicly disclosed the above and directed you to advise them whether they could approve the subdivision application for Quail Run. You also enclose the draft of the August 8, 1988 minutes of the meeting which reflects on page 4 that Supervisor Peters made a statement that a supervisor had a conflict of interest: that he had a conflict because his wife had a subdivision near Quail Run and it has been suggested that she connect to the township road through the Quail Run subdivision; that Supervisor Frank also has a subdivision in the same area and proposes to connect using the same road and lastly, Mr. Huff does not wish to have traffic through his subdivision and has declined to adopt the Centre Region recommendation that he amend his plan to permit such access. The minutes also reflect that a Mr. Brown is currently farming the Huff property. You conclude by requesting advice from the Ethics Commission as to the matter of the supervisors voting to approve the Quail Run subdivision application when they have a potential conflict as to the subdivision. Discussion: As township supervisors for Halfmoon Township, the three supervisors are public officials as that term is defined in the Ethics Act. 65 P.S. §402; 51 Pa. Code §1.1. As such, their conduct is subject to the provisions of the Ethics Act and the restrictions are therein are applicable to them. Section 3(a) of the Ethics Act provides: 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. Code §403(a). Under Section 3(a) quoted above, the State Ethics Commission has determined that use of office by a public official to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon, Orders No. 128, 129, affirmed H. Amos Goodall, Jr. Esquire September 12, 1988 Page 3 McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet, Order No. 412 -R, affirmed Yacobet v. State Ethics Commission, Pa. Commw. Ct. , 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow, Order 458 -R, affirmed Koslow v. State Ethics Commission, Pa. Commw. Ct. , 540 A.2d 1374 (1988). Likewise, a public official /employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. In the instant matter, it appears that all three members of the Board of Supervisors are in a conflict situation regarding the Quail Run subdivision application. The first supervisor has a personal and private interest in the matter because his wife, has a subdivision near Quail Run and it is suggested that she connect to the township road through the Quail Run subdivision. Even though it might be said that the subdivision is that of the supervisors wife and not the supervisor, it is noted that Section 3(a) of the Ethics Act applies to the public official as well as the public official's immediate family. Further, the Commission has determined that the above provision applies to situations where public officials interest in a private outside matter is indirect as well as direct. See Welz, Opinion 86 -001. Turning to the situation of Mr. Frank, it is noted that he also has a subdivision in the same area and is proposing to connect using the same road. Finally, Mr. Huff, whose property is currently farmed by Mr. Brown, has a subdivision wherein he does not wish to have traffic through that subdivision and has opposed a Centre Region recommendation that he amend his plan to permit access. From the above, it appears that the three supervisors may have a conflict of interest regarding voting upon the Quail Run development. The Ethics Commission has determined that in situations where a majority or all of public officials of a governmental body are in a conflict of interest situation and their combined recusal would result in their governmental body being unable to function, a "rule of necessity" has been applied by the Commission in these situations provided certain conditions are met. Although public officials must normally abstain in voting or participating in matters wherein they have a conflict of interest, the "rule of necessity" operates where the governmental body could not function in light of the conflicts of several members of that governmental body. If there is no provision for the substitution of third parties for the officials who have a conflict of interest or if there is no provision for an alternative forum, then the "rule of necessity" would operate H. Amos Goodall, Jr. Esquire September 12, 1988 Page 4 because the governmental body would be unable to otherwise function. The Commission opined in the Hahalis, Opinion 83 -009, that if there is no provision for substitution of parties or an alternative forum, the normally disqualified members, under the "rule of necessity," could participate in forming a quorum; additionally they could vote provided the normally qualified member or members was present. In addition, the Commission opined that the governmental body must give advance notice to the public that matters will be considered which require the application of the "rule of necessity" and further that the public record should show the reason for the application of the rule. In the instant case, if there is no provision for a substitution of a third party and if there is no provision for an alternative forum, then the "rule of necessity" would allow the three supervisors to participate provided all of the above conditions are met. Therefore, although it appears that all three supervisors are in a conflict of interest in this case, the "rule of necessity" would allow them to participate and vote provided they adhere to the requirements set forth in the rule. Lastly, the propriety of your proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, regulation, or ordinance or other code of conduct other than the Ethics Act has not been considered. Specifically, not addressed is the applicability of the Second Class Township Code. Conclusion: The second class township supervisors from Halfmoon Township are public officials subject to the provisions of the Ethics Act. Under Section 3(a) of the Ethics Act, all three township supervisors have a conflict of interest; however, since all three supervisors have a conflict, the "rule of necessity," would allow their participation in voting provided there is no provision for the substitution of a third party or an alternative forum to decide the issue and provided all other conditions in terms of prior public notice and disclosure are satisfied. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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. H. Amos Goodall, Jr. Esquire September 12, 1988 Page 5 such. This letter is a public record and will be made available as 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. Sincerely, Vincent Dopko, General Counsel