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HomeMy WebLinkAbout90-588 BennDear Mr. Benn: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 23, 1990 Mr. Niles S. Benn, Esq. 90 -588 Wiley & Benn 204 -206 Mumper Lane, Suite 1 P.O. Box 288 Dillsburg, PA 17019 Re: Conflict, Public Official /Employee, Township Supervisor, Realty, Sale, Golf Course, Voting, Free Privileges on Golf Course. This responds to your letters of June 13 and July 26, 1990, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a second class township supervisor from voting on matters of a golf course wherein he has free golfing privileges and secondly as to voting on matters of a law suit against the municipality by an individual who purchased the land from a business in which the supervisor had a financial interest. Facts: As solicitor for the Monaghan Township Board of Supervisors and on behalf of Supervisor Wayne Miller, you seek an advisory opinion regarding a possible conflict. Miller had a thirty percent interest in a family held corporation wherein thirty percent interests were owned individually by a brother and sister as well as a ten percent interests held by their father. The corporation sold a parcel of real estate in the municipality to another corporation for a sum in excess of six hundred thousand dollars. Although there were no conditions on the sale of the realty, the principal stockholder of the purchasing corporation advised the family members that each one of them as well as members of their family would have golfing privileges on the proposed golf course which was intended to be constructed on the land. It is anticipated that the proposed golf course would be a private club and that none of the family members of the selling corporation would have a membership or privileges in the club or the ability to use the facilities except the golf course wherein they would be permitted at their discretion to play without paying green fees. You inquire on behalf of Miller as to whether he has a right to vote on matters that would come before Mr. Niles S. Benn Page 2 the township concerning issues pertaining to the golf course and specifically the approval or disapproval of the land development plans, subdivision plans, etc. You then inquire that if Miller is determined not to have the right to vote, what action can be taken if the two remaining supervisors split on their vote. In such a scenario, you ask whether Miller may vote to break the tie. As a second area of concern, you indicate that within the hundred twenty acres of property which has been sold, there are a hundred acres of fruit trees which had been originally farmed by the sellers. After taking title, the purchaser removed approximately eighty acres of fruit trees from the area of the contemplated golf course. The purchaser advised the seller during negotiations that the sellers would be permitted to continue to harvest the remaining fruit trees by maintaining them through spraying and taking fruit from the trees at the sellers expense. The purchaser advised the sellers that if they did not elect such action, the purchasers intention was to allow the trees to grow wild. During 1989 Miller choose to harvest the trees and secure the fruit. In light of the fact that the purchaser has recently filed a law suit against the township with regard to the land development proposal, and since Miller has received mixed information as to his ability to participate and vote on the approval or disapproval of the land development and subdivision process, you seek advice from this Commission. Discussion: As supervisor for Monaghan Township, Wayne Miller is a public official as that term is defined under the Ethics Law, and hence he is subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. 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 Mr. Niles S. Benn Page 3 family is associated. "Conflict" or "conflict of interest" 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 or 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. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. "Financial interest." Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities. (j) Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, Mr. Niles S. Benn Page 4 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. If a conflict exists, official /employee to abstain to that effect with the supervisor. Section 3(j) requires the public as well as file a written memorandum person recording the minutes or In the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s), then in that event participation is permissible provided the disclosure equ-irements•- ..:noted above are - followed- = ,..... In applying the provisions of Section 3(a) of the Ethics Law quoted above to the instant matter, Wayne Miller would have a conflict as to participating or voting on matters that would come before the township with regard to the proposed golf course and specifically the approval or disapproval of such land development plans. Even aside from the value of the harvesting the fruit on the land from the remaining fruit trees which have not been removed by the purchaser, it is clear that the golf course privileges of paying without green fees is a private Mr. Niles S. Henn Page 5 pecuniary benefit. A private pecuniary benefit would consist of the fact that Mr. Miller would be enriched because he would not have those out of pocket expenses of paying for green fees. Such would be a private pecuniary benefit to himself. Finally, his voting or participating on the matter of the development of the proposed golf course would be a use of authority of his office which would have a direct impact upon the above private pecuniary benefit. Accordingly, Mr. Miller would have a conflict and would have to abstain from participation and voting as well as observe the disclosure requirements of Section 3(j) outlined above. However, in the event that the two remaining supervisors split on their vote after the abstention of Mr. Miller, then Section 3(j) would allow Mr. Miller to vote in that instance to break the tie provided the disclosure requirements of Section 3(j) outlined above are followed. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the respective municipal code. Conclusion: As supervisor for Monaghan Township, Wayne Miller is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would prohibit Wayne Miller from participating or voting on a matter of a golf course or the approval or disapproval of a land development plan or subdivision plan wherein he has been granted privileges to play golf without paying green fees and to harvest fruit from existing trees that remain on the site of the golf course. He must abstain and observe the disclosure requirements of Section 3(j) outlined above. In the event that the two remaining supervisors split their vote, then Mr. Miller may vote to break the tie provided the disclosure requirements of Section 3(j) are satisfied. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), this 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, providing the requestor 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. Mr. Niles S. Benn Page 6 Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. cerely, OmcAn incent Dop , Chief Counsel