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HomeMy WebLinkAbout91-523-S MlakerDear Mr. Mlakar: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 4, 1991 Mr. Leslie Mlakar 91 -523 -S Loughran, Mlakar & Bilik 126 S. Pennsylvania Avenue Greensburg, PA 15601 Re: Conflict, Public Official /Employee, Voting, Quorum, Majority Vote, Legally Required Vote, Supplemental Advice. This responds to your letter of April 10, 1991, in which you requested supplemental advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a first class township commissioner who has a conflict in voting to break a deadlock on the board or as to being counted for quorum purposes or from chairing a meeting even if he abstains from participating and voting on substantive matters. Facts: Following letters of request of January 24 and January 31, 1991, Advice of Counsel 91 -523, was issued which is incorporated herein by reference. That advice concluded that Robert Geiger, as a Chairman of the Board of Commissioners of the Township of Penn in Westmoreland County, had a conflict regarding a zone district change and was precluded from participating or voting in that matter. The advice further set forth the disclosure requirements that Chairman Geiger would have to make relative to Section 3(j) of the Ethics Law. By letter of April 10, 1991, the Board of Commissioners of the Township of Penn, and in particular Robert Geiger as Chairman, have requested you to seek a supplemental advisory regarding Advice of Counsel 91 -523. Your supplementary request focuses upon an interpretation of Section 3(j) of the Ethics Law. Since the Township of Penn is a first class township with five commissioners, it appears likely that the vote on the proposed zone change request may result in Mr. Leslie J. Mlakar Page 2 two commissioners being in favor of the zone change and two commissioners being opposed. In light of the above, the issue arises as to whether Robert Geiger, who has been required to abstain from voting under Section 3(a) of the Ethics Law, may nevertheless be able to vote pursuant to 3(j) of the Ethics Law. In this regard, you note that 3(j) of the Ethics Law specficially deals with the situation in which a three member governing body of a political subdivision has one member who has abstained due to conflict and the two other members who cast opposing votes; and in such instances, 3(j) would allow the member with the conflict to vote to break the tie providing the disclosure requirements are met. You then raise the question as to the application of 3(j) involving larger boards exceeding three in number with an odd number of members. After referencing the portion of Section 3(j) which deals with conflicts as to governing bodies who would be unable to take any action, you suggest that the Section 3(j) is subjecct to many interpretations. In particular, you note that if a five member board would have three members disqualified, then the three disqualified members could vote; however, if only one member would be disqualified, you note that there are four remaining members who constitute a majority and if the four members tie, may the one member who has the conflict vote to break the tie. You then raise a second issue as to whether the board member who is required to abstain may be nevertheless counted in determining whether a quorum exists for conducting a regular meeting. In particular, if there is a five member board and two members are absent, can the remaining three members constitute a quorum even if one of those members would have a conflict. Finally, you ask whether the chairman who has a conflict and could not participate or vote might nevertheless act as chairman and call for the vote. In this case, you inquire as to whether Geiger as chairman could call the vote for the proposed zoning change. Penn Township has advertised the proposed zoning change as an amendment to the zoning ordinance at a public meeting. You as solicitor review the proposed ordinance, and the chairman of the board then asks the board for a motion to approve the adoption of the ordinance or to deny the zone change request or table the request. Following the making and seconding of a motion and discussion, the question is called for a vote. In such cases, the chairman as per standard operating procedure does not limit the amount of discussion or time for discussion and would not participate in the discussion. You inquire as to whether Geiger could chair the meeting without substantively participating in . the discussion or voting. Discussion: As Commissioner and Chairman for Penn Township, Robert Geiger is a public official as that term is defined under the Ethics Law, and hence he is subject to the provisions of that law. Mr. Leslie J. Mlakar Page 3 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, 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, Section 3(j) requires the public official /employee to abstain as well as file a written memorandum to that effect with the person recording the minutes or supervisor. In applying the provisions of Section 3(j) quoted above to the three questions you have posed, a clear reading of Section 3 indicates that as to boards having more than three members, public officials having conflicts could only vote after necessary disclosure in cases where the conflicts of the public officials under the Ethics Law makes the majority (or other legally required vote) unattainable. In this regard, Section 3(j) is explicit in the condition that "the number of members of the body required to abstain from voting under the provisions of this Mr. Leslie J. Mlakar Page 4 section makes the majority or other legally required vote of approval unattainable . . . °. Thus, in order for this provision to be operative, it is necessary that a sufficient number of public officials who have a conflict under the Ethics Law would abstain so that the majority or legally required vote could not be attained. To be specific, in the case of a five member board, three public officials would have to have a conflict under the Ethics Law in order for this provision to become operative; in the case of seven member board, it would be necessary for four public officials to have a conflict under the Ethics Law in order for this Section to become operative. Conversely, in a five member board, the fact that one or two members would have a conflict under the Ethics Law would be insufficient basis under 3(j) for these members to vote after disclosure since a majority or legally required vote could still be attainable despite their abstention. Further, the fact that the abstention by one member would result in a 2 -2 deadlock as to the remaining four member is not a circumstance under Section 3(j) which would allow voting. Such a situation would be similar to a case where a five member board would be deadlocked due to a resignation or absence of one of the board members. Therefore, under the circumstance where Chairman Geiger is the only individual that has the conflict under the Ethics Act regarding the proposed zoning change, his abstention, coupled with a 2 -2 deadlock, does not form a basis under Section 3(j) for him to vote to break the tie. As to the second inquiry of whether Chairman Geiger could be counted for quorum purposes even though he could not participate or vote, Section 3(j) of the Ethics Law does not prohibit the presence of Chairman Geiger for the purposes of constituting a quorum, but the Ethics Law does prohibit him from participating and voting. Section 3(j) of the Ethics Law would require the necessary disclosures, and he could not participate or vote to break a 2 -2 deadlock. In this regard, it is assumed that if Chairman Geiger is counted for the purposes of a quorum, the two members of the five member board who did not appear would have received the requisite notice of the hearing and the regular procedures were followed regarding the scheduling of the meeting in question. Lastly, as to the inquiry of whether Geiger could chair the meeting at which the zoning change matter would occur, the Ethics Law would not prohibit him from chairing the meeting providing he did not participate or vote or take any action which could substantively affect the outcome of the decision. Restating the above, Geiger must act in a limited fashion whereby the issue could be properly raised, reviewed and decided by the members of the board who do not have the conflict. 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 Mr. Leslie J. Mlakar Page 5 not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the respective municipal code. Conclusion: As Chairman for Penn Township, Robert Geiger is a public official subject to the provisions of the Ethics Law. As to governing bodies with more than three members, Section 3(j) of the Ethics Law would only allow public officials who have a conflict to the vote, after appropriate disclosure, in those instances where the number of the public officials who have a conflict makes the majority or other legally required vote of approval unattainable. Section 3(j) of the Ethics Law does not preclude the chairman who has a conflict from being counted for quorum purposes, but the public official could not participate or vote when he has a conflict. Lastly, the chairman of the board may sit for purposes of procedurally allowing a case to be presented and acted upon by the board provided he does not participate or vote as to his conflict and provided he does not attempt to substantively affect the outcome of the vote. 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. 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 §2.12. VJD /slj This letter is a public record and will be made available as Sincerely, Th Vincent . Dopko, Chief Counsel