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HomeMy WebLinkAbout18-546 McAndrewPHONE: 717 -783 -1610 TOLL FREE: 1- 800 -932 -0936 ADVICE OF COUNSEL July 27, 2018 To the Requester: Ms. Marissa McAndrew, Esquire Briechle Law Offices, PC Dear Ms. McAndrew: FACSIMILE: 717 -787 -0806 WEBSITE: www.ethics.12a.gov 18 -546 This responds to your letters dated July 3, 2018, and July 9, 2018, and your submission received July 10, 2018, b which you requested an advisory from the Pennsylvania State Ethics Commission "Commission "). Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Fa. -S. § 1101 et seq., would impose prohibitions or restrictions upon an individual serving as a township supervisor with regard to participating in discussions, votes, or other actions of the township board of supervisors pertaining to a conditional use application for a property that the individual owns in the township, where: 1) the property Is currently used as a bar and restaurant; (2) the conditional use app ication seeks permission to use the property as a drug and alcohol rehabilitation facility; and (3) the individual would be able to sell the property for a significant profit if the conditional use application would be approved. Facts: You have been authorized by Elliot Ross ( "Mr. Ross ") to request an armory from the Commission on his behalf. You have submitted facts that may be fairly summarized as follows. Mr. Ross is a Supervisor for the Township of Herrick ( "Township "). The Township Board of Supervisors consists of three Members. Mr. Ross owns a property (the "Propert ") in the Township that is currently used as a bar and restaurant. Mr. Ross recently f led a conditional use application for the Property (the "Property Conditional Use Application ") that seeks permission to use the Property as a drug and alcohol rehabilitation facility. If the Property Conditional Use Application would be approved, Mr. Ross would be able to sell the Property for a significant profit. You state that there has been substantial push -back from the community with regard to the Property Conditional Use Application. The Township is taking testimony n public hearings, the first of which was held on June 13, 2018. A hearing fficer could be appointed to conduct future public hearings on the Property Conditional Use Application. McAndrew, 18 -546 JT27, 2018 Page 2 Mr. Ross has filed a written memorandum stating that he has a pecuniary interest in the approval or denial of the Property Conditional Use Application because it would affect his ability to sell the Property. You state that Mr. Ross will abstain from the initial vote on the approval or denial of the Property Conditional Use Application, at which time the other two Township Supervisors might cast opposing votes. Based upon the above submitted facts, you pose the following questions: (1) Whether Mr. Ross would be permitted to participate in discussions on issues pertaining to the Property Conditional Use Application, such as whether to appoint a hearing officer to conduct the public hearings on the Property Conditional Use Application; (2) Whether Mr. Ross would be permitted to make, second, or vote on a motion to appoint a hearing officer to conduct the public hearings on the Property Conditional Use Application; (3) Whether Mr. Ross would be permitted to vote to break a tie vote of the other two Township Supervisors as to the approval or denial of the Property Conditional Use Application; and (4) Whether Mr. Ross would be permitted to participate in other actions of the Township Board of Supervisors pertaining to the Property Conditional Use Application. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics—Act, 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. 65 Pa.C.S. §§ 1107(10 }, (11). An advisory only affords a defense to the extent the requester has truthfully discllosed all of the material facts. As a Township Supervisor, Mr. Ross 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 McAndrew, 18 -546 uTly 27, 2018 Page 3 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 provided 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), (j). 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 the 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 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. In each instance of a conflict of interest, the public officiallpublic 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, conferring with others, and lobbying for a particular result. Juliante, Order 809. Subject to certain statutory exceptions, in each instance of a voting conflict, 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. In ap lying the above provisions of the Ethics Act to the instant matter, you are advised as follows. McAndrew, 18 -546 July 27, 2018 Page 4 Mr. Ross would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in discussion(s), vote(s), and/or other action(s) of the Township Board of Supervisors pertaining to: 1) the appointment of a hearing officer to conduct the public hearings on the Prope y Conditional Use Application; (2) the approval or denial of the Froperty Conditional Use Application; or (3) other matters) involving the Propert y Conditional Use Application. Subject to the voting conflict exceptions of Section 1103(1 of the Ethics Act, Mr. Ross would be required to abstain fully from participation in eac instance of a conflict of interest. The exception for breaking a tie vote despite a conflict is available exclusively to members of three - member governing bodies who first abstain and disclose their conflicts as required by ection 11030) of the Ethics Act. See, etc Garner, Opinion 93- 004; Pavlovic, Opinion 02 -005. In Garner, supra, the Commission considered the issue of whether, under Section 1 03 of the Ethics Act, a township supervisor serving on a three - member board would be permitted to second a motion despite a conflict where the two remaining supervisors would have opposing views or where one of the remaining two members would be absent from the meeting. Citing Juliante, supra, the Commission first noted that seconding a motion is a use of authority of off'ce. See, Garner, supra. The Commission then stated: However, the General Assembly in enacting Section [1103 ')] would not have allowed a public officiallemployee on a t ree member board who has a conflict to be able to vote unless a second to the motion could be made so that the matter would be in the posture for a vote. Thus, we believe that since there is a need for a second to a motion in order to make Section '103(j)] of the Ethics Law operative, the General Assembly intended as to three members [sic] boards for the public official with a conflict to be allowed to second so that if the other supervisors became deadlocked, the public official could then vote provided the disclosure requirements are satisfied. Garner, Opinion 93 -004 at 6. The Commission concluded that Section 11030) of the Etl-iics Act would allow a township supervisor serving on a three - member board to second a motion despite having a conflict where the two remaining suppervisors would have opposing views or where one of the other two supervisors would be absent. The Commission emphasized that its ruling was expressly limited in its application to three - member boards and to the question of seconding a motion. In applying Gamer to the submitted facts, you are advised as follows. Section 1103(a) of the Ethics Act would prohibit Mr. Ross from making a motion pertaining to the Property Conditional Use Application, including but not limited to a motion to appoint a hearing officer to conduct the public hearings on the Property Conditional Use Application or a motion as to the approval or denial of the Property Conditional Use Application. However, because the Township Board of Supervisors consists of three Members, Mr. Ross would be permitted to second a motion pertaining to the Property Conditional Use Application where: (1) the other two Township Supervisors would have opposing views, or (2) one of the other two Township Supervisors would be absent. Allowing Mr. Ross to second the motion under such circumstances would put the matter in a posture for a vote. Section 11030) of the Ethics Act would permit Mr. Ross to vote to break a tie if the other two Township Supervisors would cast opposing votes on a motion pertaining to the Property Conditional Use Application —such as a motion to appoint a hearing McAndrew, 18 -546 July 27 2018 Page 5 officer to conduct the public hearings on the Property Conditional Use Application or a motion as to the approval or denial of the Property Conditional Use Application— provided that Mr. Ross would initial/ 1 abstain from the vote: and 2 fullv satisfV the isc osure requirements o owever, in voting to break a tie vote, Mr. Ross could not otherwise use the authority of office, such as by advocating his view, in the matter. 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: Based upon the submitted facts that: (1) Elliot Ross ( "Mr. Ross ") is a Supervisor for the Township of Herrick ( "Township "); (2) the Township Board of Supervisors consists of three Members Mr. Ross owns a property (the °Property ") in the Township that is currently used as a �3) ar and restaurant; (4) Mr. Ross recently filed a conditional use application for the Property (the "Property Conditional Use Application ") that seeks permission to use the Property as a drug and alcohol rehabilitation facility; (5) if the Property Conditional Use Application would be approved, Mr. Ross would be able to sell the Property for a significant profit; (6) there has been substantial push -back from the community with regard to the Property Conditional Use Application; (7) the Township s taking testimony in public hearings, the first of which was held on .tune 13, 2018; ((8)a hearing officer could be appointed to conduct future public hearings on the Properly Conditional Use Application; (9) Mr. Ross has filed a written memorandum stating that he has a pecuniary interest in the approval or denial of the Property Conditional Use Application because it would affect his ability to sell the Property; and X10) Mr. Ross will abstain from the initial vote on the approval or denial of the Property CConditional Use Application, at which time the other two Township Supervisors might cast opposing votes, you are advised as follows. As a Township Supervisor, Mr. Ross is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et sec . Mr. Ross would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in discussion(s), vote(s), and/or other action(s) of the Township Board of Supervisors pertaining to: (1) the appointment of a hearing fficer to conduct the public hearings on the Property Conditional Use Application; (2) the approval or denial of the Property Conditional Use Application; or (3) other matter(s) involving the Property Conditional Use Application. Subject to the voting conflict exceptions of Section 11030) of the Ethics Act, Mr. Ross would be required to abstain fully from participation in each instance of a conflict of interest. Section 1103(a) of the Ethics Act would prohibit Mr. Ross from making a motion pertaining to the Property Conditional Use Application, including but not limited to a motion to appoint a hearing officer to conduct the public hearings on the Property Conditional Use Application or a motion as to the approval or denial of the Property Conditional Use Application. However, because the Township Board of Supervisors consists of three Members, Mr. Ross would be permitted to second a motion pertaining to the Property Conditional Use Application where: (1) the other two Township Supervisors would have opposing views; or (2) one of the other two Township Supervisors would be absent. Allowing Mr. Ross to second the motion under such circumstances would put the matter in a posture for a vote. Section 11030) of the Ethics Act would permit Mr. Ross to vote to break a tie if the other two Township Supervisors would cast opposing votes on a motion pertaining to the Property Conditional Use Application --such as a motion to appoint a hearing officer to conduct the public hearings on the Property Conditional Use Application or a motion as to the approval or denial of the Property Conditional Use Application — provided that Mr. Ross would initially: (1) abstain from the vote; and (2) „ fully „satisfy the McAndrew, 18 -546 July 27, 2018 Page 6 disclosure requirements of Section 1103(1). However, in voting to break a tie vote, Mr. Ross could not otherwise use the authority of office, such as by advocating his view, in the matter. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(l 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. Any such appeal must be in writingg and must be act�ualIV 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, Robin M. Hittie Chief Counsel