HomeMy WebLinkAbout18-571 Logsdon-ZugarekPHONE: 747- 783 -3610
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To the Requester:
ADVICE OF COUNSEL
December 6, 2018
Mr. Sean W. Logsdon, Esquire
Donald G. Karpowich, Attorney -at -Law, P.C.
Dear Mr. Logsdon:
FACSIMILE: 717- 787 -0806
WEBSITE: www.ethics.pa.gov
18 -571
This responds to your letter dated October 22, 2018, by which you requested an
advisory from the Pennsylvania State Ethics Commission ( "Commission ").
Issue: Whether the Public Official
P
a.CS. § 1101 et seq., would impose
council member, who owns and resides
cannabis manufacturing plant located in
discussions, deliberations, or votes of
complaints regarding an odor emanatir
applications involving the manufacturir
manufacturing plant.
and Employee Ethics Act ( "Ethics Act "), 65
prohibitions or restrictions upon a borough
at a property that is adjacent to a medical
the borough, with regard to participating in
borough council pertaining to concerns or
g from the manufacturing plant, land use
g plant, or other matters related to the
Facts: You have been authorized by John Zugarek ( "Mr. Zugarek ") to request an
a visory from the Commission on his behalf. You have submitted facts that may be
fairly summarized as follows.
Mr. Zugarek was recently appointed as a Member of Council for the Borough of
White Haven ( "Borough "). Before Mr. Zugarek was appointed to Borough Council, a
medical cannabis manufacturing plant (the "Manufacturing Plant ") opened in the
Borough. Mr. Zugarek owns and resides at a property that Is adjacent to the
Manufacturing Plant.
Mr. Zugarek and several other owners of property adjacent to the Manufacturing
Plant have attended Borough Council meetings to voice their complaints about an odor
emanating from the Manufacturing Plant. Concerns or complaints regarding the odor
emanating from the Manufacturing Plant and land use applications involving the
Manufacturing Plant may be brought before Borough Council in the future.
Based upon the above submitted facts, you seek guidance as to whether the
Ethics Act would permit Mr. Zugarek to participate in discussions, deliberations, or votes
of Borough Council pertaining to concerns or complaints regarding the odor emanating
from the Manufacturing Plant, land use applications involving the Manufacturing Plant,
or other matters related to the Manufacturing Plant.
Discussion: It is initial) noted that pursuant to Sections 1107(10) and 1107(11) of
e Ethics—Act, 65 Pa.C.S. y§§ 1107(10), (11), advisories are issued to the requester
Logsdon, 18571
December 6, 2018
Page 2
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 disclosed all of the material facts.
As a Borough Council Member, Mr. Zugarek 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
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 wo 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), Q).
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 employee 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
Logsdon, 18 -571
December 6, 2018
Page 3
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 %holding suc h a public position for the private pecuniary benefit
of the public officiallpic empoyee 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, 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.
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, ssuuRra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics
Act, a public officiallpublic 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.
A conflict of interest would not exist to the extent the "de minimis exclusion"
and /or the "classlsubclass 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.
The de minimis exclusion precludes a finding of conflict of interest as to an action
having a de minimis (insignificant) economic impact. Thus, when a matter that would
otherwise constitute a conflict of interest under the Ethics Act would have an
insignificant economic impact, a conflict would not exist and Section 1103(x) of the
Ethics Act would not be implicated. See, Kolb, Order 1322; Schweinsbur , Order 900.
In order for the class/subclass exclusion to apply, two criteria must be met: (1)
the affected public official/public employee, immediate family member, or business with
which the public official/public employee or immediate family member is associated
Losdo_n, 18 -571
eD camber 6, 2018
Page 4
must be a member of a class consisting of the general public or a true subclass
consisting of more than one member; and (2) the public official /public employee,
immediate family member, or business with which the public official /public employee or
immediate family member is associated must be affected "to the same degree" (in no
way differently) than the other members of the class/subclass. 65 Pa.C.S. §� 1102; see,
Ka lack ' Opinion 02 -003; Rubenstein, Opinion 01 -007. The first criterion of the
exc usion is satisfied where to Members of the proposed subclass are similarly
situated as the result of relevant shared characteristics. The second criterion of the
exclusion is satisfied where the individual /business in question and the other members
of the class/subclass are reasonably affected to the same degree by the proposed
action. Kablack, supra.
Having established the above general principles, you are advised as follows.
Mr. Zugarek would have a conflict of interest under Section 1103(a) of the Ethics
Act with regard to participating in discussion(s), deliberation(s), or vote(s) of Borough
Council pertaining to concerns or complaints regarding the odor emanating from the
Manufacturing Plant, land use applications involving the Manufacturing Plant, or other
matter(s) related to the Manufacturing Plant if: (1) he would be consciously aware of a
private pecuniary benefit for himself, member(s) of his immediate family, or a business
with which he or member(s) of his immediate family are associated; (2) his 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. Cf. Kistler, supra.
As noted above, in each instance of a conflict of interest, Mr. Zugarek 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 Borough Code or case law as to bias.
Conclusion: Based upon the submitted facts that: (1) John Zugarek ( "Mr.
ugare c was recentlyy appointed as a Member of Council for the Borough of White
Haven (` Borough "); (2) before Mr. Zugarek was appointed to Borough Council, a
medical cannabis manufacturing plant (the "Manufacturing Plant ") opened in the
Borough; (3) Mr. Zugarek owns and resides at a property that is adjacent to the
Manufacturing Plant; (4) Mr. Zugarek and several other owners of property adjacent to
the Manufacturing Plant have attended Borough Council meetings to voice their
complaints about an odor emanating from the Manufacturing Plant; and (5) concerns or
complaints regarding the odor emanating from the Manufacturing Plant and land use
applications involving the Manufacturing Plant may be brought before Borough Council
in the future, you are advised as follows.
As a Borough Council Member, Mr. Zugarek is a public official subject to the
provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §
1101 et sag. Mr. Zugarek would have a conflict of interest under Section 1103(a) of the
Ethics Act with regard to participating in discussion(s), deliberation(s), or vote(s) of
Borough Council pertaining to concerns or complaints regarding the odor emanating
from the Manufacturing Plant, land use applications involving the Manufacturing Plant,
or other matter(s) related to the Manufacturing Plant if: (1) he would be consciously
aware of a private pecuniary benefit for himself, member(%mily of his immediate family, or a
business with which he or member(s) of his immediate are associated; 2) his
Logsdon, 18 -571
December 6, 2018
Page 5
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. § 1 102,
would be applicable.
In each instance of a conflict of interest, Mr. Zugarek would be required to
abstain from participation, which would include voting unless one of the statutory
exceptions of Section 1103 0) 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(11) 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 actually
received at the Commission within thirty (30) days of the date
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