HomeMy WebLinkAbout91-561 ConfidentialSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
July 19, 1991
91 -561
Re: Conflict, Public Official /Employee, Township Supervisor,
Use of Authority of Office, Voting, Real Estate Interest of
Supervisor, Application for Special Exception for Landfill
by Owner of Land Leased to Supervisors for Coal Mining.
This responds to your letters of June 6, 1991, June 11,
1991, June 14, 1991 and June 17, 1991 in which you requested
confidential advice from the State Ethics Commission.
Issue: Under the restrictions of the Public Official and
Employee Ethics Law, whether two of three Township Supervisors
have a conflict of interest and may vote in matters related to a
proposed landfill for the Township, where the two Township
Supervisors are partners in a coal mining company and mine on
property which they lease from an entity which is related to or
is the actual applicant seeking to construct the landfill.
Facts: You seek the advice of the State Ethics Commission in
your capacity as solicitor for the Board of Supervisors of
Township A. It is noted that in addition to submitting written
inquiries to this Commission concerning your request for advice,
you have also spoken by telephone with the Executive Director and
with Chief Counsel for this Commission, the contents of which
telephone conversations are incorporated herein by reference.
The facts which you presented included substantial past action
and initially characterized your inquiry as seeking a ruling on
past conduct which is beyond the scope of an advisory under the
Ethics Law. However, you have expressly clarified that your
request is only regarding prospective conduct. This advice is
issued only with regard to prospective action, and anv past
action is not considered. Nevertheless, for coherency, the
history which you have presented will be set forth.
Township A has three supervisors. In 1990, two entities
made an Application for a Special Exception before the County B
Zoning Hearing Board, for the construction of a landfill in
Township A. At that time, which was before the matter proceeded
to a hearing before the Zoning Hearing Board, the Supervisors
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opposed the Application for a Special Exception. The Application
was denied by the Zoning Hearing Board and is currently pending
on appeal before the Court of Common Pleas of County B.
Two of the three Supervisors have been and continue to be
partners in a coal company and they own a mining operation. At
the time of the initial application to the County for a landfill
permit, the land on which these two Supervisors have been mining
was owned by a corporate entity known as Company C. After the
Supervisors took the position against the Application for the
Special Exception, certain events occurred. The property of
Company C, which was in bankruptcy, was then purchased by another
entity, which in fact was a co- applicant for the Special
Exception referred to above. This entity was a partnership or
business entity and you believe the controlling partner or owner
to be an individual named Mr. D. This entity, in turn, now
leases the area to the two Supervisors for the mining operation.
Mr. D. is also believed to be the controlling owner or partner of
Company E which is applying for the zoning permit for the
landfill. Thus, as a result of the above events, the two
Supervisors are currently mining pursuant to a coal lease, on
property of the entity which is related to or is the actual
applicant in the landfill matter before the County B Court of
Common Pleas.
The Supervisors have now been asked to review their
position on the Application for Special Exception which was
initially denied by the County B Zoning Hearing Board. They have
also been asked to review a proposed new and changed Application
for Special Exception that may or may not be filed, and /or to
enter into a long -term agreement with the owner of the land and
the proposed landfill operator for the Township.
You have raised a concern as a result of the prospective
actions that these Supervisors are contemplating. You state that
the Supervisors must take further action with respect to:
1) The pending court action;
2) A proposed second Application for Special Exception;
and
3) A proposed agreement between the landowner and the
landfill with the Township.
The Supervisors must decide whether to continue to oppose the
landfill or to negotiate with the landfill applicants.
You have expressed to the Supervisors that there may be a
conflict of interest which exists in view of the fact that two
Supervisors are mining on property owned by and leased from an
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entity owned by, wholly or partially, an individual who is a
controlling partner or owner of the applicant for the Special
Exception for the landfill. Indeed, these two Supervisors are
considering changing their vote position to favor the landfill.
You state that your concern is the fact that after the initial
position being taken by the Supervisors in the action now
pending before the County B Court of Common Pleas, circumstances
changed as to the ownership of the land upon which these two
Supervisors are mining. You state that the Supervisors had
nothing to do with the change in the ownership of the property,
which was a rather large financial transaction involved in a
lengthy bankruptcy proceeding; however, the situation has
developed and the question deals with all future conduct of the
Supervisors. You acknowledge that the question is not concerned
with any prior action taken by the Supervisors.
You ask that this Commission advise whether, in fact, a
conflict of interest exists, and if so, how the Supervisors
should proceed in view of the fact that two members of the three
member Board are involved in this matter and the situation
requires further action by the Board which it cannot avoid. You
state that your reading of the law indicates that in the event a
conflict of interest exists which would prevent any action from
occurring - because two of three members are in question - that
the parties who have the conflict of interest may file a written
statement of the basis for their conflict with the Secretary of
the Board and then vote on the matter.
Discussion: As noted above, this advice is confined solely to
the issue of whether the two Supervisors who conduct their mining
operation on property leased from an entity which is related to
or is the actual applicant in the landfill matter would have a
conflict of interest as to any prospective action and whether
these two Supervisors may vote given their current relationship
with Mr. D and the coal mining operation lease. 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 Supervisor for Township A, each of the two Supervisors
involved in the coal mining operation lease is a public official
as that term is defined under the Ethics Law, and hence each
Supervisor is subject to the provisions of that law.
Page 4
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
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
Page 5
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.
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.
Page 6
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
the two Township Supervisors involved in the coal mining
operation, it is clear that both of these Supervisors would have
a conflict of interest concerning any matter related in any way
whatsoever to the proposed landfill, including but not limited to
each and every prospective action which you have indicated they
are contemplating. Thus, the conflict of interest would exist
for these two Supervisors with respect to:
1) The pending court action involving the appeal from the
Zoning Hearing Board's denial of the Application for a
Special Exception;
2) A proposed second Application for a Special Exception;
and
3
A proposed agreement between the Township and the owner
of the land and the proposed landfill operator for the
Township.
Given the tenant - landlord relationship between these two
Supervisors and one or both of the entities seeking the zone
change, the obvious potential exists that the Application for
Special Exception and related matters will prospectively be
considered in a more favorable light than before the Supervisors'
individual circumstances changed in regard to their personal
livelihoods. The private relationship between these two
Supervisors and the zone change applicant(s) and the financial
stake which each of these two Supervisors has in earning a
livelihood under a lease with the Special Exception Applicant(s)
is the nexus establishing the conflict of interest in this case
because the Supervisors' participation or voting in these matters
could have a private pecuniary benefit for themselves. Under
the former Ethics Act and under the present Ethics Law, the
Commission has recognized such circumstances as presenting a
conflict of interest as relating to a financial stake of the
public official, even if it is indirect. See, Welz, 86 -001;
Bassi, Opinion 86 -007; Woodrina, Opinion 90 -001.
Your second specific inquiry regards whether the two
Supervisors at issue may utilize the exceptions under Section
3(j) of the Ethics Law to vote, regardless of the existence of
their conflict, because they happen to be on a three - member
board. The Supervisors may vote provided they comply with the
disclosure requirements of Section 3(j). However, the exception
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which permits these Supervisors to vote despite their conflicts
is not a license to violate the public trust. The Legislature
has declared that "...public office is a public trust and that
any effort to realize personal financial gain through public
office other than compensation provided by law is a violation of
that trust." 65 P.S. 5401. In voting, these Supervisors may not
violate the public trust.
Furthermore, these two Supervisors may do no more than vote.
The exceptions under Section 3(j) may not be extended to any
other activities. Rather, these two Supervisors would continue
to be subject to all other restrictions under Section 3(a) of the
Ethics Law since they do have a conflict of interest. They
cannot use the authority of their office in any way other than to
vote. Prohibited activities would include but not be limited to
such conduct as lobbying behind the scenes, participating in any
discussions, or any other participation regarding these issues.
These two Supervisors would also continue to be subject to the
restrictions of Sections 3(b) and 3(c).
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 Supervisors for Township A, the Township A
Supervisors are public officials subject to the provisions of the
Ethics Law. This advice regards prospective conduct only without
addressing in any way whatsoever the past conduct that has taken
place. The two Supervisors who conduct their coal mining
operation on land leased from an entity which is related to or is
the actual applicant which is seeking a Special Exception and /or
an agreement permitting it to construct a proposed landfill in
Township A, would have a conflict of interest in any matter
related to the Application or related to the landfill. The
Supervisors' conflict of interest would include but not be
limited to each and every prospective action below which you have
specifically indicated the Supervisors are contemplating:
1) The pending court action involving the appeal from the
Zoning Hearing Board's denial of the prior Application
for a Special Exception;
2) A proposed second Application for a Special Exception;
3) A proposed agreement between the Township and the
owner of the land and the proposed landfill operator
for the Township.
Page 8
Under the exceptions of Section 3(j) of the Ethics Law, as
members of a three - member Board which will be unable to take any
action on such matters if the two Supervisors are unable to vote,
the two Supervisors may vote if disclosures are made as required
by Section 3(j) set forth above. In so voting, the Supervisors
may not violate the public trust. Furthermore, these two
Supervisors may do no more than vote on these matters; the
exception of Section 3(j) only permits them to vote and they may
not use the authority of office in any way other than the aspect
of voting. The Supervisors will continue to be subject to all
other restricted activities under Sections 3(a), (b), and (c) of
the Ethics Law. Section 3(j) of the Ethics Law requires that at
the next public meeting of the Board of Supervisors both of these
two Supervisors publicly, orally, announce and disclose the
nature of their 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
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 52.12.
Vincent J. Dopko,
Chief Counsel