HomeMy WebLinkAbout19-541 ConfidentialPHONE: 717-781-1610
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To the Requester:
STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
Emmmanow-1
FACSIMILE: 717-787-0806
WEBSITE: wwmethics,12amy
19-541
This responds to your letter dated August 13, 2019, received August 19, 2019, by
which you re uested a confidential advisory from the Pennsylvania State Ethics
Commission ("Commission").
Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65
7a.S, § 1101 et seq., would impose prohibitions or restrictions upon an individual
serving as an A and 8 of a [type of political subdivision] C with re ard to voting on
zoning amendments and land develo ment plans involving a developer's proposed
development, where the individual's Npe of relative 1] owns a property that the
developer would purchase and develop as part of the proposed development.
Facts: You request an advisory from the Commission on behalf of Individual D.
You have submitted facts that may be fairly summarized as follows,
Individual D is an A and B of the C of Political Subdivision E, located in [name of
county], Pennsylvania. The Political Subdivision E C consists of three As.
Individual D's (type of relative 1], Individual F, owns a property (the "Property")
that is located in Political Subdivision E. Individual D and his [type of relative 2] are not
named on the deed for the Property, and Individual D and his [type of relative 2] have
no ownership interest involving the Property.
A developer named G (the "Developer' proposes to purchase the Property and
adjacent parcels in order to develop construct Hs (the "Development"). One
of he adjacent parcels that the Developer plans to purchase is owned by individual 1,
who is an A and J of the Political Subdivision E C.
The Developer may propose a zoning amendment and a land development plan
that would involve the Propert and adjacent parcels, including the parcepowned by
Individual I. You state that t, e Developer had not submitted any formal zoning
amendments or land development plans regarding the Development to Political
Subdivision E as of August 13, 2019 (the date of your advisory request letter).
Based upon the above submitted facts, you pose the following questions:
Confidential Advice, 19-541
Se_pTe_mFe_rTF, =9
Page 2
(1) Whether Individual D would have
on any zoningamendments or
Develop ,hat the Developer
and
a conflict of interest with regard to voting
land development Flans. regarding the
would submit to Political Subdivision E;
(2) If Individual D would have a conflict of interest with regard to voting on
zoning amendments or land development plans regarding the
Development as a result of his [type of relative I's] ownership of the
Properly, what procedures for voting would be permitted under the Ethics
Act if another A of the Political Subdivision E C would also have a conflict
of interest with regard to voting on zoning amendments or land
development plans regarding the Development.
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 en age in an
independent investigation of the facts, nor does it speculate as to facts thathave 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 an A and B of the Political Subdivision E C, Individual D is a public official
subject to the provisions of the Ethics Act.
Sections 11 03(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
provided herein. In the case of a three -member governing
od 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
Confidential Advice, 19-541
September T87MTO
Page 3
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 emplo ee of the authority of his office or
employment or any confidential information received through
his holding public office or employment for the priva e
pecuniary enefit 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 industrV 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.
"Immediate family." A parent, spouse, child, brother
or sister.
65 Pa.C.S. § 1102.
Subject to the statutory exclusions to the Ethics Act's definition of the term
"c
onflict" or "conflict of interest," 65 Pa.C.S. § 1102, a public official/public emplo ee 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.
The use of authority of office is not limited merely to voting, but extends 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.
In each instance of a conflict of interest, a public official/public employee 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.
Having established the above general principles, your specific questions shall
now be considered.
In response to your first question, you are advised as follows.
Confidential Advice 19-541
September fF,2,N--b
Page 4
Subject to the statutory exclusions to the definition of "conflict" or "conflict of
interest" as set forth in Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102, pursuant to
Section 1103(a) of the Ethics Act, Individual D would have a conflict of interest in
matters before the Political Subdivision E C that would financially impact him, a member
of his immediate family, or a business with which he or a member of his immediate
family is associated. Individual D's [type of relative 1], Individual F, is not a member of
his "immediate family" as that term is defined by the Ethics Act. Cf., Pulice v. State
Ethics Commission A.2d 161 (Pa. Cmwlth. 1998), allocatur d6n6d., 557 Pa. 642,
732 A.2d 2 )8) Holding that a relative not —encompassed by the family
I �9�
relationships iste n the Holding
Act's definition of the term "immediate family'�—in that
case, a son -in -law --would not be considered a member of immediate famt).
Therefore, the submitted fact that Individual F owns the Property, which would e
purchased and developed by the Developer as part of the Development, in and of itself
would not form the basis of a conflict of interest for Individual D in matter(s) pertaining to
the Development.
Absent some basis for a conflict of interest such as a private pecuniary benefit to
Individual D, a member of his immediate family, or a business with which he or a
member of his immediate family is associated, Individual D would not have a conflict of
interest under Section 1103(a) of the Ethics Act with regard to voting on zoning
amendments) or land development plan(s) regarding the Development that the
Developer would submit to Political Subdivision E.
Your second question need not be addressed given the answer to your first
question.
The propriety of the proposed conduct has only been addressed under the Ethics
Act; the app
licability 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 K
Conclusion: Based upon the submitted facts that: (1) Individual D is an A and B,
of the C o Political Subdivision E, located in [name of countyl, Pennsylvania; (2) the
Political Subdivision E C consists of three As; (3) Individual D's Jtype of relative 1],
Individual F, owns a property (the "Property") that is located in Political Subdivision E;
(4) Individual D and his [type of relative 2] are not named on the deed for the Property,
and Individual D and his [type of relative 2] haveno ownership interest involving the
Property; (5) a developer named G (the "Developer,, ) proposes to purchase the Property
an adjacent parcels in order to develop them and construct Hs (the "Development");
(6) one ofthe adjacent parcels that the Developer plans to purchase is owned by
Individual 1, who is an A and J of the Political Subdivision E C; (7) the Developer may
ropose a
zoning amendment and a land develo
ment lan that would involve the
Property and adjacentpa parcels, including the parceIownedby Individual 1; and (8) the
Developer hd not submitted any formal zoning amendments or land development
plans regarding the Development to Political Subdivision E as of August 13, 2019 (the
d teofyouradvisoryreq request letter), you are advised
as follows.
As an A and B of the Political Subdivision E C, Individual D is a public official
subject to the provisions of the Public Official and Employee Ethics Act ("Ethics Act"), 6
Pa.C.S. § 1101 et siffl.
Subject to the statutory exclusions to the definition of "conflict' or "conflict of
interest" as set forth in Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102, pursuant to
Section 1103(a) of the Ethics Act, Individual D would have a conflict of interest in
Confidential Advice 19-541
September fr, 2ffb
Page 5
matters before the Political Subdivision E C that would financially impact him, a member
of his immediate family, or a business with which he or a member of his immediate
famV is associated. Individual D's [type of relative 11, Individual F, is not a member of
his immediate family" as that term is defined by the Ethics Act. Therefore, the
submitted fact that Individual F owns the Property, which would be purchased and
developed by the Developer as part of the Development,
in and of itself would not form
the basis of a conflict of interest for Individual D in matter(s) pertaining to the
Development.
Absent some basis for a conflict of interest such as a private pecuniary benefit to
Individual D, a member of his immediate family, or a business with which he or a
member of his immediate family is associated, Individual D would not have a conflict of
interest under Section 1103(a) of the Ethics Act with regard to voting on zoning
amendment(s) or land development plan(s) regarding the Development that the
Developer would submit to Political Subdivision E.
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 writiny and, must be actualiv
received at the Commission within thirty (31 ) day, of the date of this
AdFice "pursuant to 51 Pa. Code § 13.2(h). The appeal may be
received at the Commission by hand delivery United States mall,
delivery service, or by FAX transmission fflf-W-0806 Failure to
file such an appeal at the Commission within thirty (Tb) days may
result in the dismissal of the appeal.
Sincerely,
Robin M. Hittie
Chief Counsel