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HomeMy WebLinkAbout19-545 HelselPHONE: 717-783-1610 TOLL FREE: 1-800.-932-0936 To the Requester: Mr. Stone R, Helsel Dear Mr. Helsel: STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 FINANCE BUILDING WEBSITE: wwwothics.pa.nov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL September 27, 2019 19-545 This responds to your letters dated August 16, 2019, and September 3, 2019, by which you re uested an advisory from the Pennsylvania State Ethics Commission ("CommissionT Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 P—a-C-S, § 1101 et seq., would impose prohibitions or restrictions upon an individual serving a Member and Vice Chairman of the Planning Commission of Springfield Township, Mercer County, Pennsylvania, with regard to partici sting in matters involving Simon Property Group or its successors/designees, where: ir11) Simon Property Group owns the Grove City Premium Outlets; �2� Gap Inc. leases space at the Grove City Premium Outlets for an Old Navy store; 3) the individual is employed with Gap Inc,y r a part-time Brand (Sales) Associate for the Old Navy store located at the Grove City Premium Outlets. Facts: You request an advisory from the Commission based upon the following submitted facts. You are a Member and Vice Chairman of the Planning Commission of Springfield Township ("Township' located in Mercer County, Pennsylvania. You have submitted a copy Of ("Township' Ordinance No. 1-1991, which created the Township Planning s8om-mission. Pursuant to Springfield Township Ordinance No. 1-1991, the Township Planning Commission has powers and duties as established and authorized by the Pennsylvania Municipalities Plannin Code, 53 P.S. �ie 10101 et s". See, Springfield Township Ordinance No. 1-1901, Section 4. Township Plannin� omrnission consists Df seven Members appointed by the Springfield Township Boar of Supervisors. Id., at Section 2. You have also submitted a copy of the Springfield Township Planning Commission By -Laws & Standing Rules, which, at Section 5, refer to the Ethics Act. In a private capacity, you are employed with Gap Inc. as a part-time Brand (Sales) Associate for an Old Navy store (the Old Navy Store Gap Inc. leases space at the Grove City Premium Outlets for the Old Navy Store. The Grove City Premium Helsel, 19-545 5—ep-TeRnber 27, 2019 Page 2 Outlets are owned by Simon Property Group. You state that in your employment at the Old Navy Store, you do not have a supervisory role, managerial role, or formal business relationship with Simon Property Group. Based upon the above submitted facts, the question that is ,presented is whether you would have a conflict of interest with re participating regard to participati in matters before the Township Planning Commission that would involve Simon Property Group or its successors/designees. Discussion: It is initial] noted that pursuant to Sections 1107(10) and 1107(11) of the EIRcs Act, 65 Pa.0 U 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 discosed all of the material facts. In responding to your inquiry, the threshold question to be addressed is whether, in your capacity as a Member and Vice Chairman of the Township Planning Commission, you are a public official subject to the provisions of the Ethics Act. The term "Public official" is defined in the Ethics Act as follows: § 1102. Definitions "Public official." Any person elected by the public or elected or appointed by a governmental body or an appointed official in the executive, legislative or judicial branch of this Commonwealth or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense or to otherwise exercise the power of the State or any political subdivision thereof. 65 Pa.C.S. § 1102, The Regulations of the State Ethics Commission similarly define the term "public official" and set forth the following additional criteria that are used to determine whether the advisory board exception applies: (i) The following criteria will be used to determine if the exception in this paragraph is applicable: JA) The body will be deemed to have the power to expen public funds if the body may commit funds or may otherwise make payment of moneys, enter into contracts, invest funds held in reserves, make loans or grants, borrow money, sell issue sue bonds, employ staff, purchase, lease, acquire r I real or personalproperty without the consent or approval of the governing body and the effect of the power to expend public funds has a greater than de minimis economic impact on the interest of a person. (B)The body will be deemed to have the authority to otherwise exercise the power of the Commonwealth or a political subdivision if one of the following exists: Helsel, 19-545 S—ep-Fermber 27, 2019 Page 3 (1) The body makes binding decisions or orders adjudicating substantive issues which are appealable to a body or person other than the governing authority. (11) The body exercises a basic power of government and performs essential governmental functions. (111) The governing authority is bound by statute or ordinance to accept and enforce the rulings of the body. (IV) The body may compel the governing authority to act in accordance with the body's decisions or restrain the governing authority from acting contrary to the body's decisions. (V) The body makes independent decisions which are effective without approval of the governing authority. (VI) The body may adopt, amend and repeal resolutions, rules, regulations or ordinances. (VII) The body has the power of eminent domain or condemnation. (VIII) The enabling le?islation of the body indicates that the body is established or exercising public powers of the Commonwealth or a political subdivision. (ii) The term does not include judges and inspectors of elections, notary publics and political party officers. (iii) The term generally includes persons in the following offices: (A) Incumbents of offices filled by nomination of the Governor and confirmation of the Senate, (B Heads of executive, legislative and indepeUent agencies, boards and commissions. .(C) Members of agencies, boards and commissions appointed by the General Assembly or its officers. (D) Persons appointed to positions designated as officers by the Commonwealth or its political subdivisions. (E) Members of municipal, industrial development, housing, parking and similar authorities. (F) Members of zoning hearing boards and similar quasi-judicial bodies. (3) Members of the public bodies meeting the criteria in paragraph (i)(A). 'Helsel, 19-545 8—epRe—t�ber 27, 2019 Page 4 51 Pa. Code § 11.1. In applying the Ethics Act's definition of the term "public official,,' the first portion of the definition provides that a public official is a person who. (1) is elected by the public; (2) is elected or appointed y a governmental body- or (3) is an appointed official in the executive, legislative, orjudicialbranch of the Gommonwealt or a political subdivision of the Commonwealth. Muscalus, Opinion 02-007, The fact that Members of the Township Planning Commission are appointed by the Township Board of Supervisors satisfies the first portion of the definition. In considering the remainder of the definition, the necessary conclusion is that you would fall within the statutory exclusion for members of purely advisory boards lacking authority to expend public funds other than reimbursement for personal expense or to otherwise exercise the power of the State or any political subdivision thereof. In considering the duties and responsibilities of the TownshipPlanning Commission as delineated by the Pennsylvania Munic alities Planning Coe, 53 P.S. § 10101 et seg., and Springfield TownshipOrdinance _, 1-199 1, it is clear that the Township PI—anning Commission is a purely advisory board. Therefore, in your capacity as a Member and Vice Chairman of the Township Planning Commission, you are not a "public official" subject to the Ethics Act. Thus, you are not subject to the restrictions of Section 1103(a) of the Ethics Act (pertaining to conflict of interest). In response to your specific question, you are advised that Section 11 03(a) of the Ethics Act — which does not apply to you — would not prohibit you from participating in Planning matters before the Township anning Commission that would involve Simon Property Group or its successors/designees. 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. Conclusion: Based upon the submitted facts that: (1 you are a Member and Vice Chairman of the Planning Commission of SpringfieldQnship ("Township'), located in Mercer County, Pennsylvania; (21 pursuant to Springfield Township Ordinance No. 1-1991, the Township Planning Commission has powers and duties as established and authorized by the Pennsylvania Municipalities Planning Code, 53 P.S. § 10101 et seg.; (3) the Township Planning Commission consists of seven Members appoint—ed'by-the Sprin ield Township Board of Supervisors; (4) in a private capacity, You are employed with Cp Inc. as a part-time Brand (Sales) Associate for an Old Navy store (the 'Old Navy Store"); (5) Gap Inc. leases space at the Grove City Premium Outlets for the Old Nav� Store; (6) the Grove City Premium Outlets are owned by Simon I Property Group; and ( ) in your employment at the Old Navy Store, you do not have a supervisory role, managerial role, or formal business relationship with Simon Property Group, you are advised as follows. In your capacity as a Member and Vice Chairman of the Township Planning Commission, you are not a "public official" as that term is defined in the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1102. Thus, you are not subject to the restrictions of Section 11 03(a) of the Ethics Act (pertaining to conflict of interest). Section 11 03(a) of the Ethics Act — which does not apply to you — would not prohibit you from participating in matters before the Township Planning Commission that would involve Simon Property Group or its successors/designees. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Helsel, 19-545 Se—pternber 27, 2019 Page 5 Pursuant to Section 11 07(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 an full reason to challenge same, you may appeal the Advice to the I 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 writing and must be actuall received at the Commission within thirty (30) days of the dateofhis Advice pursuant to 51 Pa. Code § f3.2(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 (17-10) days may result in the dismissal of the appeal Sincerely, Robin M. Hittie Chief Counsel