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HomeMy WebLinkAbout90-605 LambertBoard of Supervisors Lambert, Halvorsen, and Cloud West Goshen Township 1025 Paoli Pike West Chester, PA 19380 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 21, 1990 90 -605 Re: Conflict, Public Official /Employee, Supervisor, County Club, Zoning, Expansion of Golf Course, Golf Course Membership. Dear Messrs. Lambert, Halvorsen and Cloud: This responds to your letter of October 12, 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 the members of a board of supervisors of a second class township from voting or participating upon the zoning of a parcel of realty for golf course usage when the members of the board are members of a golf course. Facts: West Goshen Township is a Second Class Township with a three member Board of Supervisors in Chester County. Inquiry is made as to whether a conflict exists regarding amending the West Goshen Township zoning map to include a designated parcel as "residential golf course district" and to amend the zoning ordinance to add the new district entitled "residential golf course". On February 23, 1988, the Board conducted a hearing on the application of Rowan Management, Inc. to consider the above amendments. The real estate in question is adjacent to the nine hole course of the West Chester Country Club wherein Rowan Management plans to expand the golf course onto the realty as well as construct residences therein. The proposed zoning has already been reviewed by both the West Goshen Planning Commission and the Chester County Planning Commission, both of which entities made a favorable review. As to the West Chester Country Club, Robert E. Lambert (Lambert) is a golfing member, Raymond H. Halvorsen (Halvorsen) is not a member and Richard C. Cloud (Cloud) is a non -golf member. Ronald C. Nagle, the township solicitor, has opined that membership in the club does not preclude any member of the board of supervisors from voting on the application before them. At the February 23, 1988 hearing, Page 2 Lambert abstained because of his membership in the club while Halvorsen and Cloud voted to approve the application before them. Ordinance 9 of 1989 was adopted which permits a residential golf course by conditional use. Thereafter on September 25, 1990, a hearing was conducted on the conditional use application of Fairways, Inc. as to the realty in question. To your knowledge, the principals of Fairways, Inc. are the same as for Rowan Management, Inc. and the club is not a principal in either group. At that hearing on the advice of counsel, you each disclosed your membership in the club and gave the township secretary a written statement to that effect, copies of which are attached to your request. At the present time, Cloud remains a house (non- golf) member of the club, Halvorsen is social (non -golf) member of the club since 1988 and Lambert is a full golf member of the club as well as chairman of the club house expansion /renovation committee. Solicitor Nagle has subsequently opined that under Act 9 of 1989 it is his view that there is no direct pecuniary interest in the discharge of your duties which would constitute a conflict and there is no substitute body to rule on this application which would be automatically approved if you did not take action. At the hearing, Solicitor Nagle made a disclosure that he represents one of the principals of Rowan Management, Inc., Mark Rowan, who is also a principal of Fairways, Inc. relative to a partnership dissolution following the death of Rowan's partner. The ownership of the realty in question was part of the partnership property which has been transferred to Fairways, Inc. After noting that there was no objection to Nagle's continued representation of the Board, you have appended three pages of the transcript of the September 25 meeting relative to Nagle's disclosure. After referencing certain publicity regarding the possible conflict by members of the Board and Nagle, Solicitor Nagle has withdrawn from the case and the Board has requested Sondra Slade to act as counsel for the duration of the application. Although the club is not an applicant as to the subject hearing, the development plans do include constructing an additional nine holes for the club. Fairways, Inc. will advance the club $1.2 million dollars as an interests free loan: $550,000 is marked for expansion of the golf course and $650,000 is for expending other club facilities. You have supplied a copy of an October 2, 1990 club document which reflects the financial considerations of the project wherein the club advises that it will increase member certificates and proceed with other improvements regardless of whether the application is approved. Cloud is vice - president of the First National Bank of West Chester which is providing financing for the members' certificates up -grade costs. The up- grade costs will exist whether the subject application is approved by the board. Further, the club is a long time customer of the bank and has used many of its services and has approached the bank with the financing request even though members of the club may obtain financing anywhere. After noting that Cloud Page 3 failed to mention the financing arrangement between the club and the First National Bank, all three members of the Board hold a non - interests bearing bond in the amount of $800 with the club and each will be subject to the increased certificate costs, should he choose to retain the membership. No Board member has any financial interest or connection with Fairways, Inc. In addition, the parts of the club and the proposed expansion are in two other municipalities, the approvals of which are within the jurisdiction of other municipal bodies but not West Goshen Board. You conclude by requesting an advisory opinion as to whether a conflict exists and if so, the status of a members' voting on the application. Discussion: As Supervisors for West Goshen Township, each member of the Board is a public official as that term is defined under the Ethics Law, and hence 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 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. Page 4 "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. In applying the provisions of Section 3(a) of the Ethics Law quoted above to the instant matter, it does not appear that any of the three members of the board would have a conflict based upon the following assumptions. It is expressly assumed that each member does not have any financial interest or position in Fairways, Inc. or Rowan Management and does not have any financial interest in the West Chester Country Club which would comprise more than five percent of the equity of that business or more than five percent of the assets of economic interests in indebtedness of the club. In addition, it is also assumed that the First National Bank of West Chester of which Cloud is Vice - President does not and will not have involvement with the Board of Supervisors as to the matter of the application for the conditional use which is pending before the Board. Lastly, it is assumed that the participation or voting by the members of the Board of Supervisors as to the application and resultant expansion of the club would not increase the value of their bond certificates beyond the invested amounts so as to create any private pecuniary benefit for themselves. Based upon the above assumptions, a conflict would not exist since there would not be any element of private pecuniary benefit to the board members Page 5 individually; in addition, although it would appear that the West Chester Country Golf Club would obtain a private pecuniary benefit, the club is not a "business with which... associated" based upon the assumption that each Board member does not have a "financial interest" as defined under the Ethics Act. Lastly, 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 Supervisors for West Goshen Township, each Board member is a public official subject to the provisions of the Ethics Law. Subject to the qualification and assumptions as noted above, Section 3(a) of the Ethics Act would not preclude any member of the three member Board of Supervisors from participating or voting on a conditional use application of Fairways, Inc. 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. such. This letter is a public record and will be made available as 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 S2.12. Sincerely, Vincent J. Dopko, Chief Counsel