Loading...
HomeMy WebLinkAbout19-529 ConfidentialPHONE: 717-783-1610 TOLL FREE: 1. 800-932-0936 To the Requester: STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL June 25, 2019 FACSIMILE: 717-787-0806 WEBSITE: www.ethiGs.r)a.gov 1111• ».* This responds to your letter dated May 31, 2019, by which you requested confidential advisory from the Pennsylvania State Ethics Commission ("Commission"). Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 P-a-.U-.S. 5 1101 et sea., would impose prohibitions or restrictions upon an A for Political Subdivision B withregardto voting on a proposed amendment to the Political Subdivision B zoning ordinance which would allow Cs as a D in the E of Political Subdivision B, (1) the Political Subdivision B A owns a property that is located in the E of Political Subdivision B; and (2 the Political Subdivision B A received a request from an F of the Political Subdivision � A's property who is interested in G a C at the property. Facts: You have been authorized by Individual H to request a confidential advis ry from. the Commission on her behalf. You have submitted facts that may be fairly summarized as follows. Individual H is an A for Political Subdivision B, which is located in [name of countvl Pennsylvania. Political Subdivision B is currently reviewinga proposed amen&nent to the Political Subdivision 8 zoning ordinance which would allow Cs as a D in the E of Political Subdivision B. It is anticifated that the Political Subdivision B [governing body] will consider the enactment o the proposed amendment in [month, year]. Individual H owns a property (the "Property") that is located in the E of Political Subdivision B. Individual H recently received a request from an F of the Property who is interested in G a C at the Property. Based upon the above submitted facts you ask whether the Ethics Act would impose prohibitions or restrictions upon Individual H with regard to voting on the proposed amendment to the Political Subdivision B zoning ordinance which would allow Cs as a D in the E of Political Subdivision B. Discussion: It is initiall noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics --A , 65 Pa.C.S. �§nOM7(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 en age in an independent investigation of the facts, nor does it speculate as to facts tha have not been submitted. It is the burden of the requester to truthfully disclose all of the material Confidential Advice, 19-529 June 26, 2019 Page 2 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 acts. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion/advice may be given only as to prospective (future) conduct. To the extent that your inquiry relates to conduct that has already. occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent your inquiry relates to future conduct, your inquiry may and shall be addressed. As a Political Subdivision B A, Individual H 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. (j) 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 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), 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 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 Confidential Advice, 19-529 June 25, Page 3 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 b'official or public employee, a member of his immediate public ficamily 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 �uthority of public office/employment or confidential information received b h Idi such uch a public position for the private pecuniary benefit of the public official/putolice m90ee himself, any member of his immediate family, or a business with which he or a memb er of his immediate family is associated. In each instance of a conflict of interest, the public off icial/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, andlobbying for a particular result. Juliante, Order 809. Subject to certain statutory exceptions,, in each instance of a voting coffin R— ict, Section 1103,d of the Ethics Act would require the public official/public I employee to abstain 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 I TO-ITa-To-Tifie 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 iimplies 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, su ra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics Jug ic cat, pu ic 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. A conflict of interest would not exist to the extent the "de minimis exclusion" or 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. 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 11031(a) of the Ethics Act would not be implicated. See, Kolb, Order 1322; Schweinsburg, Order 900. Confidential Advice, 19-529 June 25, 201'�J— Page 4 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 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 w% differently) than the other members of the class/subclass. 65 Pa.C.S. g 1102; see, Ka lack, Opinion 02-003; Rubenstein, Opinion 01-007. The first criterion off-IF6 exclusi n is satisfied where the 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, suora. Having established the above general principles, you are advised as follows. In her official capacity as a Political Subdivision B A, Individual H would have a conflict of interest and would violate Section 11 03(a) of the Ethics Act by voting on the proposed amendment to the Political Subdivision B zoning ordinance which would allow Cs as a D in the E of Political Subdivision B if: (1) she would be consciously aware of a private pecuniary benefit for herself, a member of her immediate family, or a business with which she or a member of her immediate family is associated; (2) her action(s) would constitute one or more specific steps to attain that benefit; (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; and (4) her voting would not fall within a statutory exception under Section 11030) of the Ethics Act. As noted above, in each instance of a conflict of interest, Individual H 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 I. Conclusion: Based upon the submitted facts that: (1) Individual H is an A for Political S division B, which is located in [name of county], PennsXlvaniai 2) Political Subdivision B is currentlyreviewing a proposed amendment to the Political Subdivision B zoning ordinance which would allow Cs as a D in the E of Political Subdivision B; (3 it is anticipated that the Political Subdivision B [governing body] will consider enactment of the proposed amendment in [month, year]; 4) Individual H owns a property r perty (the "Property") hat is located in the E of Political)Subdivision B; and (5 Individual H recently received a request from an F of the Property who is interested in GG a C at the Property, you are advised as follows. As a Political Subdivision B A, Individual H is a public official subject to the provisions of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. 1101 et seq. In her official capacity as a Political Subdivision B A, Individual H would have ii-c-o—nflict of interest and would violate Section 1103(a) of the Ethics Act by voting on the proposed amendment to the Political Subdivision B zoning ordinance which ich would allow Cs as a D in the E of Political Subdivision B if: (1) she would be consciously Confidential Advice, 19-529 June 25, 279— Page 5 aware of a private pecuniary benefit for herself, a member of her immediate family, or a business with which she or a member of her immediate family is associated; (2) her action(s) would constitute one or more specific steps to attain that benefit; (3) neither the de minimis exclusion nor the class/subclass exclusion set forth within the Ethics Acts definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, would be applicable; and (4) her voting would not fall within a statutory exception under Section 11030) of the Ethics Act. In each instance of a conflict of interest, Individual H 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 1103(j) 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 wrifingg and must be actuall received at the Commission within thirty(3llj days of the dati-of this Advice pursuant to 51 Pa. Code § 13.2(h). The ap eal may be received at the Commission by hand delivery. Unrfed States mail, delivery service, or by FAX transmission (717 l87 08+06 . Failure to file such an appeal at the Commission within thirty (4) days may result in the dismissal of the appeal. Sincerely, obin M. Hittie ` Chief Counsel