HomeMy WebLinkAbout91-558 NovakMr. Ben Novak
122 East High Street
P.O. Box 209
Bellefonte, PA 16823 -0209
Dear Mr. Novak:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
July 11, 1991
91 -558
Re: Conflict, Public Official /Employee, Township Supervisor and
Employee of the Pennsylvania State University, Solicitor for
Township Board of Supervisors and Member of the Board of
Trustees of the Pennsylvania State University, Application
of Borough Water Authority for Conditional Use Which Would
Increase Water Capacity for Customers Including Pennsylvania
State University
This responds to your letters of May 21, 1991, June 12,
1991 and July 2, 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 Township
Supervisor who is also an employee of the Pennsylvania State
University, and upon a Solicitor for a Township Board of
Supervisors who is also a member of the Board of Trustees of the
Pennsylvania State University, with regard to the State College
Borough Water Authority's application for a conditional use to
operate one or more wells on several lots proposed to be
purchased from a private individual in the Township, which if
granted, would increase the capacity of the Authority's water
supply of which Pennsylvania State University is a customer.
Facts: Your request for advice concerns yourself as Solicitor
for the Benner Township Board of Supervisors and a member of the
Board of Trustees of the Pennsylvania State University, and also
Michael Kelleher who is a member of the Board of Supervisors of
Benner Township and an employee of the Pennsylvania State
University.
Your initial letter of request stated the following as an
issue: "The requested advisory opinion involves the question of
Mr. Ben Novak
Page 2
whether or not a conflict of interest has arisen in the course of
a hearing on a zoning application for a conditional use."
(Letter of May 21, 1991 at 1) (Emphasis added). Both your
framing of the above issue and the facts set forth in your
inquiry letter which included substantially past action clearly
characterized your inquiry as seeking a ruling on past conduct
which is beyond the scope of an advisory under the Ethics Law.
Through subsequent telephone conversations and further
correspondence with Chief Counsel, you have now clarified that
your request is only regarding prospective conduct. This Advice
is issued strictly and solely with regard to prospective action,
and a_y past action is not considered. Nevertheless, for
purposes of presenting a coherent history, the history which you
have presented is set forth verbatim:
In May of 1990, the State College Borough
Water Authority (SCBWA) filed an application for a
conditional use to operate one or more wells on
several lots the SCBWA proposes to purchase from a
private individual in the Airport Commercial Zoning
District in Benner Township.
Under the Benner Township Zoning and Land Use
Ordinance, all uses in this zoning district are
permitted as conditional uses as provided in
Section 603(c) of the Municipalities Planning Code,
53 P.S. 10603. SCBWA has applied for a conditional
use permit to operate a proposed wellfield as an
"essential service" which is one of the listed uses
for which a conditional use may be granted under
the Zoning Ordinance.
The SCBWA is a municipal authority organized
under the Municipality Authorities Act of 1945,
serving water to the residents and businesses of
State College Borough, and large parts of the
Centre Region, composed of College, Ferguson,
Halfmoon, Harris, and Patton Townships.
The proposed wells in Benner Township will be
connected into the SCBWA water system to provide
additional water supply for the entire SCBWA water
system.
The SCBWA does not supply any water service at
the present time to residents or businesses of
Benner Township. However, the SCBWA testified that
it would provide water service to any residents of
Benner Township from the proposed wellfields as
follows:
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Page 3
"Any potential customer that would
request water service and was willing to
meet the rules and regulations of the
State College Water Authority would, in
fact, be granted water service."
Tr. p. 17, July 10, 1990
At the third hearing in the case, Robert
Finley, who is employed by Penn State University
appeared as a witness, called by the SCBWA. He
appeared in his capacity as spokesman for the
Airport Area Improvement Association. This
Association is composed of all or most of the
entities in the neighborhood of the University Park
Airport in Benner Township. The Association is
composed of:
Pennsylvania State University
Centre County Airport Authority
State of the Art, Inc.
Locus, Inc.
Handi - Delivery Taxi -Cab Co.
National Car Rental
Uni -Tec Corporation
Francis Alexander (developer)
The Airport Area Improvement Association was
formed to obtain better services for its members.
Previously, it had reviewed a Pa. Dept. of Commerce
Business Infrastructure loan for the purpose of
extending a sewer line to the vicinity.
Mr. Finley appeared on behalf of the Airport
Area Improvement Association in order to "express
the opinion that we as an association are very
interested in obtaining water that would be made
available by the system." (Tr., p. 83, September
4, 1990)
If the wellfield is permitted, a water line
can physically be laid from the proposed wellfield
to serve the entities in the vicinity of the
wellfield. These might include some or all of the
members of the Airport Improvement Association.
However, there are not yet any requests or
applications filed with the SCBWA from any of the
members of the Airport Improvement Association for
such a water line.
Mr. Ben Novak
Page 4
Mr. Finley's testimony appears at pages 80 -92
of the Transcript of the September 4, 1990 hearing.
There were a total of seven hearings in the
case, at six of which testimony was taken:
July 10, 1990
August 2, 1990
September 4, 1990
October 16, 1990
January 15, 1990
February 20, 1990
April 2, 1990 (briefs and legal argument)
The zoning application of SCBWA is still
pending before the Board of Supervisors.
At the last continued meeting of the Board of
Supervisors, held on May 6, 1991, a question was
asked about whether the Solicitor for the Board of
Supervisors has a conflict of interest in the case,
as well as Supervisor Kelleher. The questions
raised are as follows:
1. The Pennsylvania State University is one
of the entities which is a member of the Airport
Improvement Association which is interested in
obtaining water service from the SCBWA water system
as a customer.
2. Although most of the Penn State campus is
supplied with water from the University's own
wellfields, some activities of Penn State are
served from the SCBWA's water system. The
proposed wells of SCBWA will add to the capacity of
the entire SCBWA water system, of which Penn State
University is a customer.
(Letter of May 21, 1991 at 1 -3).
Having set forth the above history, you note the definition
of "conflict" or "conflict of interest" set forth in Section 2 of
the Ethics Law, 53 P.S. S402. You state that the precise issue
is whether the fact that the Solicitor for the Board of
Supervisors of Benner Township is also a member of the Board of
Trustees of the Pennsylvania State University, and one of the
Supervisors is an employee of Penn State, constitutes a conflict
Mr. Ben Novak
Page 5
of interest in a zoning case where one of the actual or potential
customers for water service of the applicant Water Authority is
also the Pennsylvania State University. Neither of what you have
characterized as the "two actual parties" in the matter before
the Board of Supervisors -- SCBWA and a private citizen who has
retained counsel to oppose the conditional use application - has
raised any objection on this point.
You state that it was your opinion that the situation was
not a conflict of interest. However, because the issue was
raised by a citizen at a recent meeting, the Board of Supervisors
has directed you to request an official opinion from the
Commission. You enclosed with your initial request letter the
entire transcript of the hearings held by the Board. The
Commission received those transcripts consisting of a total of in
excess of five hundred pages. Given the voluminous nature of the
transcripts as well as the fact that they inherently regard past
conduct which will not be considered in this advice, there will
be no recitation herein regarding the contents of those
transcripts except to the extent you have referenced them in your
above history.
In your letter of June 12, 1991 you state that the action
you are requesting an opinion on is prospective. You state that
the Board of Supervisors must vote on the application for
conditional use. You ask the Commission to render its opinion as
to whether a conflict of interest exists as to the prospective
action. You note that the applicant has requested that the
conditional use application be decided within thirty days.
Discussion: As noted above, this advice is confined solely to
the issue of whether you and Michael Kelleher would have a
conflict of interest as to any prospective action concerning the
conditional use application of the State College Borough Water
Authority and any other matters related to the water service
proposal, in light of your relationships with the Pennsylvania
State University. A reading of Sections 7(10) and (11) of the
Ethics Law makes it clear that an opinion /advice may be given
only as to prospective (future) conduct. If the activity in
question has already occurred, the Commission may not issue an
opinion /advice but any person may then submit a signed and sworn
complaint which will be investigated by the Commission if there
are allegations of Ethics Law violations by a person who is
subject to the. Ethics Law. It is clear that there has been
extensive past action which is expressly not considered herein.
This advice is based solely on prospective facts which you have
submitted to this Commission.
As a member of the Board of Supervisors of Benner Township,
Michael Kelleher is a public official as that term is defined
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Page 6
under the Ethics Law, and hence he is subject to the provisions
of that law.
As Solicitor for the Benner Township Board of Supervisors,
you are a public employee as that term is defined under the
Ethics Law, and hence you are also subject to the provisions of
that law. Spataro, Opinion 89 -009 at 4. See also, Maunus.v.
Com., State Ethics Com.,, 544 A.2d 1324, 1326 (1988).
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.
"Authority of office or employment."
The actual power provided by law, the
exercise of which is necessary to the
performance of duties and responsibilities
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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.
"Business." Any corporation,
partnership, sole proprietorship, firm,
enterprise, franchise, association,
organization, self - employed individual,
holding company, joint stock company,
receivership, trust or any legal entity
organized for profit.
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.
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
Mr. Ben Novak
Page 8
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 above provisions of the Ethics Law to your
specific inquiries insofar as they regard prospective conduct by
you as solicitor for the Benner Township Board of Supervisors and
a member of the Board of Trustees of the Pennsylvania State
University, and by Michael Kelleher as a member of the Board of
Supervisors of Benner Township and an employee of the
Pennsylvania State University, it is clear that both you and
Michael Kelleher would have a conflict of interest concerning
the State College Borough Water Authority's application for a
conditional use and any other matter related to its water service
proposal. Any participation by you and /or Michael Kelleher in
this matter could result in a private pecuniary benefit for the
Pennsylvania State University, which is a business with which
both you and Mr. Kelleher are associated.
We will first discuss the private pecuniary benefit to the
University. The granting of the conditional use application of
the State College Borough Water Authority would, under the facts
which you submitted, permit the Authority to operate one or more
wells on several lots the Authority proposes to purchase from a
private individual in the Airport Commercial Zoning District in
Benner Township. Although most of the Penn State Campus is
supplied with water from the University's own wellfields, some
activities of Penn State are served from the State College
Borough Water Authority's water system. The proposed wells would
add to the capacity of the entire State College Borough Water
Mr. Ben Novak
Page 9
Authority water system of which Pennsylvania State University is
a customer.
This would result in a private pecuniary benefit to the
University by increasing the value of its land holdings and also
by enabling improvements to the University's infrastructure.
Not only would the Pennsylvania State University obtain a
private pecuniary benefit from the overall increased water
capacity of the State College Borough Water Authority's water
system, but the submitted facts establish that if the wellfield
is permitted, a water line could physically be laid from the
proposed wellfield to serve the entities in the vicinity of the
wellfield which could include some or all of the members of the
Airport Improvement Association - in other words, it could
specifically include the Pennsylvania State University. Such a
water line would magnify the above private pecuniary benefit to
the University.
There would be no exception under the exclusionary language
of the definition of conflict of interest. The conditional use
application and water service proposal would clearly not affect
the Pennsylvania State University to the same extent as all other
land owners that would be affected by it. The increase in value
of the University's substantial land holdings, as well as the
enhancement of its improvements and its infrastructure would be
incomparable to the increase in value of the typical residential
lot within the township (See Mihalik, Opinion 90 -002), and would
be unique even as contrasted to other businesses.
Turning to your relationships with the University, the
Pennsylvania State University is a "business" as that term is
defined by the Ethics Law. (See, McOuaide, Opinion 80 -043
wherein the Commission concluded under former Act 170 of 1978
that the Pennsylvania State University is nominally only a
"state- related" as opposed to a state owned institution; is not a
"governmental body "; is not the Commonwealth or an agency of the
Commonwealth; is not in the Executive, Legislative or Judicial
Branches, and its trustees and employees are not "public
employees" under the Ethics Act insofar as those capacities are
concerned.) Because the Pennsylvania State University is a
business as defined by the Ethics Law, and because the definition
of "business with which he is associated" as set forth in Section
2 of the Ethics Law includes "Any business in which the person or
a member of the person's immediately family is a director,
officer, owner, employee or has a financial interest," 65 P.S.
S402, it is clear that you as a member of the Board of Trustees
of the Pennsylvania State University and Mr. Kelleher as an
employee of the Pennsylvania State University are both associated
with that business.
Mr. Ben Novak
Page 10
Therefore the prospective conduct of you as Solicitor for
the Benner Township Board of Supervisors and of Michael Kelleher
as a member of the Board of Supervisors of Benner Township with
regard to participating in any way in the conditional use
application of the State College Borough Water Authority before
the Board of Supervisors, or in participating in any other matter
regarding the Authority's water service proposal would be a
conflict of interest prohibited by the Ethics Law.
Because both you and Michael Kelleher would have a conflict
of interest under Section 3(a) of the Ethics Law you must both,
therefore, abstain from any participation in these matters, and
Mr. Kelleher must also abstain from any vote on the conditional
use application and any other matters related to the water
service proposal. You both must also observe the disclosure
requirements of Section 3(j) outlined above.
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 Second Class
Township Code.
Conclusion: As a Member of the Board of Supervisors for
Benner Township, Michael Kelleher is a public official subject to
the provisions of the Ethics Law. As Solicitor for the Benner
Township Board of Supervisors you are a public employee subject
to the provisions of the Ethics Law. With regard to prospective
conduct only and without addressing in any way whatsoever the
extensive past conduct that has taken place as clearly set forth
in your request letters, your prospective conduct and Mr.
Kelleher's prospective conduct of participating in any way with
regard to the conditional use application of the State College
Borough Water Authority or with regard to any other matter
related to the above water service proposal would be a conflict
of interest prohibited by Section 3(a) of the Ethics Law. Mr.
Kelleher would be required to abstain from all related voting.
Section 3(j) of the Ethics Law requires that at the next public
meeting of the Board of Supervisors both you and Michael
Kelleher publicly, orally announce and disclose the nature of
your interests in a written memorandum filed with the secretary
who keeps the minutes. 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
Mr. Ben Novak
Page 11
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 §2.12.
S)ncerely,
Vincent . Dopko,
Chief Counsel