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HomeMy WebLinkAbout91-545 OBrienMr. Joseph A. O'Brien Oliver, Price & Rhodes Suite 300 220 Penn Avenue P.O. Box 1409 Scranton, PA 18501 -1409 Dear Mr. O'Brien: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 4, 1991 91 -545 Re: Conflict, Public Official /Employee, Planning Commission, PRD Application, Commissioner as Former Employee of Seller of Property. This responds to your letter of April 18, 1991, 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 member of a planning commission regarding participating or voting on an application for a planned residential development when the seller of the property is the former employer of the planning commissioner. Facts: As solicitor for the Abington Township Planning Commission (Commission), you request an advisory opinion concerning the right of Heidi Matthews, a member of the Commission, to participate and vote on the application of the Waverly Development Corporation for tentative approval of a Planned Residential Development (PRD). The Commission is the adjudicative agency on the PRD applications in Abington Township as to which you have enclosed a photocopy of pertinent sections of the zoning ordinance. The PRD is located on property in Abington and Glenburn Townships which was previously owned by the Northeastern Bank of Pennsylvania who sold it to Waverly Development Corporation. During the pendency of the PRD, the Planning Commission was advised of an agreement between Waverly Development Corporation and Northeastern Bank whereby the bank would receive additional consideration if the PRD application were approved. Three of the six Commission members recused Mr. Joseph A. O'Brien Page 2 themselves from further participation in the case because of the foregoing agreement. Thereafter, the Commission granted tentative approval to the PRD with certain conditions. Waverly and opponents of the application filed appeals to court. Waverly has now advised that it will file revised application which will be befc-e the Commission within the next 60 days. Heidi Matthews was one of the three members of the Commission who withdrew from consideration because she at that time was an employee of the Northeastern Bank. Recently, Matthews has left the employment of Northeastern Bank and has no other relationship with the bank. You conclude by requesting advice to whether Matthews may sit as a member of the Commission when it considers the revised application of the Waverly Development Corporation for tentative approval of its PRD. Discussion: As member for Abington Township Planning Commission, Heidi Matthews is a public official as that term is defined under the Ethics Law, and hence she 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 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. Mr. Joseph A. O'Brien Page 3 "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 . the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 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, 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, Mr. Joseph A. O'Brien Page 4 where one a result remaining have cast abstained the tie otherwise member has abstained from voting as of a conflict of interest, and the two members of the governing body opposing votes, the member who has shall be permitted to vote to break vote if disclosure is made as 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 the instant matter, since Matthews has left employment with the Northeastern Bank of Pennsylvania and since it is expressly stated that she has no other relationship with the bank at the present time, Northeastern Bank is no longer a business with which Matthews is associated as that term is defined under the Ethics Law. As a consequence, Section 3(a) would not preclude Matthews from participating or voting on the PRD due to her past employment relationship with Northeastern Bank which has been terminated. It is expressly assumed that Matthews has no financial interest in Waverly Development Corporation. It is also assumed that any additional consideration which Northeastern Bank would receive from Waverly Development Corporation if the PRD is approved would not directly or indirectly benefit Heidi Matthews as a former employee of the bank. Expressly based upon the foregoing assumptions, Section 3(a) of the Ethics Law would not preclude Heidi Matthews from participating or voting upon the revised application of the Waverly Development Corporation for the tentative approval of its PRD. 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 Planning Commissioner for Abington Township, Heidi Matthews is a public official subject to the provisions of the Ethics Law. Based upon the expressed assumptions noted above, Section 3(a) of the Ethics Law would not prohibit Heidi Matthews from participating or voting on a PRD as to property sold by Northeastern Bank of Pennsylvania to Waverly Development Corporation where Heidi Matthews is no longer employed by or would not receive any direct or indirect pecuninary benefit from Northeastern Bank as a result of the approval of the PRD. Mr. Joseph A. O'Brien Page 5 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. 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. Sincerely, Vincent J. Dopko, Chief Counsel VJD /slj