HomeMy WebLinkAbout18-525 PlevyakPHONE: 717 -783 -1610
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ADVICE OF COUNSEL
April 23, 2018
To the Requester:
Mr. Malcolm Plevyak
Dear Mr. Plevyak:
FACSIMILE: 717 -787 -0806
WEB56TE: www.athics.i)a.gov
18525
This responds to your letter dated February 23, 2018 (postmarked March 1,
2018, and received March 5, 2018), by which you requested an advisory from the
Pennsylvania State Ethics Commission ('Commission").
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
F7a.TS. § 1101 et se q,, would impose prohibitions or restrictions upon an individual
serving as a township supervisor with regard to participating in discussions,
deliberations, or votes of the township board of supervisors pertaining to zoning
ordinance and zoning map amendments, ordinances, regulations, or other matters that
may affect the operation of an existing hog farm or future hog farms in the township,
where: (1) the individual is opposed to hog farms being located in proximity to populated
areas o the township; (2) the individual is not in the farming or hog farming business;
(3) the individual does not own land near the existing hog farm operations or have any
businesses that would potentially compete with a hog farm operation, and neither does
the individual's family; (4) prior to becoming a township supervisor: the individual
provided financial support to litigants opposed to the operation of the existing hog farm;
and (5) since the individual has become a township supervisor, the individual has
stopped giving financial support to the litigants opposed to the operation of the existing
hog farm.
Facts: As a Supervisor for Salem Township ( "Township "), located in Luzerne
7o-u7ny, Pennsylvania, you request an advisory from the Commission based upon
submitted facts that may be fairly summarized as follows.
A hog farm (the "Existing Hog Farm ") currently operates in the Township. Based
upon health and quality of life concerns, you are opposed to hog farms being located in
proximity to populated areas of the Township. You are not in the farming or ho gg farming
business. You do not own land near the Existing Hog Farm operations or have any
businesses that would potentially compete with a hog farm operation, and neither does
your family.
At some time prior to January 2018, a dispute in the Township concerning the
Existing Hog Farm led to a lawsuit that opposed the operation of the Existing Hog Farm.
You were not a party to the lawsuit involving the Existing Hog Farm, but you did provide
Pleev a_k, 18 -525
April 23, 2018
Page 2
financial support to the litigants who were opposed to the operation of the Existing Hog
Farm.
In January 2018, you took office as a Township Supervisor. You state that since
tou have become a Township Supervisor, you have stopped giving financial support to
he litigants opposed to the operation of the Existing Hog Farm.
The Township is consideringg zonin ordinance and zoning map amendments that
would not affect the operation of the Existing Hog Farm but may affect the operation of
future hog farms in the Township. The Township might consider regulations. or
ordinances that may affect hog farm operations including the operation of the Existing
Hog Farm.
Based upon the above submitted facts, you seek guidance as to whether the
Ethics Act would impose prohibitions or restrictions upon you with regard to participating
in discussions, deliberations, or votes of the Township Board of Supervisors pertaining
to:
(1) Zoning ordinance and zoning map amendments that would not affect the
operation of the Existing Hog Farm but may affect the operation of future
hog farms in the Township;
(2) Regulations or ordinances that may affect hog farm operations including
the operation of the Existing Hog Farm; and
(3) Other matters that may affect the operation of the Existing Hog Farm or
future hog farms in the Township.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107 (11) of
the -E ics ct, 65 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. 66 Pa.C.S. § 1107(10 , (11). An advisory only affords a
defense to the extent the requester has truthfully disc osed all of the material facts.
As a Township Supervisor, you are 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
P
April 23, 202
18
Page 3
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
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 related to Section 1103(a) are defined in the Ethics Act as
follows:
§ 1102. Definitions
"Conflict" or "conflict of interest." Use by a public
official or public employyee 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
he performance of duties and responsibilities unique to a
particular public office or position of public employment.
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 officiallpublic 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 official /public employee himself, any member of his immediate family, or a
business with which he or a member of his immediate family is associated.
In each instance of a conflict of interest, the public official /public employee would
be required to abstain from participation. The abstention requirement would not be
limited merely to voting, but would extend to any use of authority of office including, but
not limited to, discussing, conferrin, with others, and lobbying for a pparticular result.
Juliante, Order 809. Subject to certain statutory exceptions, in each instance of a voting
cow ict, Section 11030) of the Ethics Act would require the public official/public
employee to abstain and to publicly disclose the abstention and reasons for same, both
orally and by filing a written memorandum to that effect with the person recording the
minutes.
Plev ak, 18 -525
prA iM, 2018
Page 4
Per the Pennsylvania Supreme Court's decision in Kistler v. State Ethics
Commission, 610 Pa. 516, 22 A.3d 223 (2011), in order to violate Section 11 03 a of the
Ethics Act, a public official/public employee:
... must act in such a way as to put his office /public position]
to the purpose of obtaining for himself a private pecuniary
benefit. Such directed action implies awareness on the part
of the [public official/public employee] of the potential
pecuniary benefit as well as the motivation to obtain that
benefit for himself.
Kistler, suRra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics
Act, aa public official/public employee "must be consciously aware of a private pecuniary
benefit for himself, his family, or his business, and then must take action in the form of
one or more specific steps to attain that benefit." Id., 610 Pa. at 528, 22 A.3d at 231.
Having established the above general principles, you are advised as follows.
You would not have a conflict of interest and would not violate Section 1103(a) of
the Ethics Act by participating in discussion(s), deliberation(s), or vote(s) of the
Township Board of Supervisors pertaining to:
• Zoning ordinance and zoning map amendments that would not affect the
operation of the Existing Hog Farm but may affect the operation of future
hog farms in the Township;
• Regulations or ordinances that may affect hog farm operations including
the operation of the Existing Hog Farm; or
• Other matters that may affect the operation of the Existing Hog Farm or
future hog farms in the Township,
unless: (1) you would be consciously aware of a private pecuniary benefit for yourself, a
member of your immediate family, or a business with which you or a member of your
immediate family is associated; (2) your action(s) would constitute one or more specific
steps to attain that benefit; and (3) neither the de minimis exclusion nor the
class /subclass exclusion set forth within the Ethics Act's definition of the term "conflict"
or "conflict of interest," 65 Pa.C.S. § 1102, would be applicable.
In each instance of a conflict of interest, you 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.
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 other than the 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 Second Class Township Code.
Conclusion: As a Supervisor for Salem Township ( "Township "), located in
uzerne County, Pennsylvania, you are a public official subject to the provisions of the
Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et se g. Based
upon the submitted facts that: (1) a hog farm (the "Existing Hog FarmTcurrently
operates in the Township; (2) based upon health and quality of life concerns, you are
opposed to hog farms being located in proximity to populated areas of the Township; (3)
you are not in the farming or hog farming business; (4) you do not own land near the
Pfev ak , 18 -525
April 23, 2018
Page 5
Existing Hog Farm operations or have any businesses that would potentially compete
with a hog farm operation, and neither does your family; (5) at some time prior to
January 2018, a dispute in the Township concerning the Existing Hog Farm led to a
lawsuit that opposed the operation of the Existing Hog Farm; (6) you were not a party to
the lawsuit involving the Existing og Farm, but you did provide financial support to the
litigants who were opposed to the operation of the Existing Hog Farm; (7) m January
2018, you took office as a Township Supervisor; (8) since you have become a Township
Supervisor, you have stopped giving financial support to the litigants opposed to the
operation of the Existing Hoa Farm; (9) the Township is considering zoning ordinance
and zoning map amendments that would not affect the operation of the Existing Hog
Farm but may affect the operation of future hog farms in the Township; and (1 -0) the
Township might consider regulations or ordinances that may affect hog farm operations
including the operation of the Existing Hog Farm, you are advised as follows.
You would not have a conflict of interest and would not violate Section 1103(a) of
the Ethics Act by participating in discussion(s), deliberation(s), or vote(s) of the
Township Board of Supervisors pertaining to:
Zoning ordinance and zoning map amendments that would not affect the
operation of the Existing Hog Farm but may affect the operation of future
hog farms in the Township;
Regulations or ordinances that may affect hog farm operations including
the operation of the Existing Hog Farm; or
• Other matters that may affect the operation of the Existing Hog Farm or
future hog farms in the Township,
unless: (1) you would be consciously aware of a private pecuniary benefit for yourself, a
member of your immediate family, or a business with which you or a member of your
immediate family is associated; (2) your action(s) would constitute one or more specific
steps to attain that benefit; and (3) neither the de minimis exclusion nor the
class /subclass exclusion set forth within the Ethics Act's definition of the term "conflict"
or "conflict of interest, " 65 Pa.C.S. § 1102, would be applicable.
In each instance of a conflict of interest, you 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.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Pursuant to Section 1107(1'1) 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.
Plea aa_k, 18 -525
April 23, 2018
Page 6
Any such appeal must be in writingg and must be actually
received at the Commission within thirty (30) days of the date of this
Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be
received at the Commission by hand delivery, 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.
Sincerely,
4t dO
RoUin�M. Hittie
Chief Counsel