HomeMy WebLinkAbout92-647Henry Ray Pope, III, Esquire
Pope, Pope, and Drayer
Ten Grant Street
Clarion, PA 16214
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG. PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
December 4, 1992
92 -647
Re: Conflict, Public Official /Employee, Township Supervisor,
Proposed Landfill, Citizens Group, Law Suit, Real Estate
Interest of Public Official or Immediate Family Member.
Dear Mr. Pope:
This responds to your letters of September 25, 1992, and
October 12, 1992, 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
with regard to a proposed landfill, where the supervisor's spouse
and various businesses with which the spouse is associated own
substantial land holdings within the township, at least some of
which would be adversely financially affected by the proposed
landfill.
Facts: As Solicitor for the Board of Supervisors of Farmington
Township in Clarion County, Pennsylvania, you request an advisory
from the State Ethics Commission on behalf of Supervisor Janet
Ochs. You have submitted the following as facts.
There is an operating solid waste landfill located in
Farmington Township. You state that the existence and expansion of
the landfill has been the subject of considerable opposition by the
residents of the Township. Prior to Ms. Ochs' election to the
Board of Supervisors, she and her husband along with other Township
residents were named as appellants in various appeals filed before
the Environmental Hearing Board. The appeals in part contested the
decision of the Department of Environmental Resources to issue the
landfill a disposal permit. Additionally, Ms. Ochs and her husband
were named as appellants in a petition for review filed in
Commonwealth Court, which sought to overturn the Environmental
Henry Ray Pope, III, Esquire
December 4, 1992
Page 2
Hearing Board's decision sustaining the decision of the Department
of Environmental Resources to issue a permit to the landfill.
After Ms. Ochs' election to the Board of Supervisors, she withdrew
as a party to all appeals involving the landfill, and she has
resigned as an active member of the citizens group opposing the
landfill.
During the pendency of the appeals, Ms. Ochs and her husband
were deposed. During her deposition, Ms. Ochs stated that the
construction and operation of the landfill would decrease the
property value of her residence property which was located more
than two miles from the landfill. Her husband, in his deposition,
stated that he was a stockholder in a corporation and a partner in
a partnership which had substantial interests in real estate,
timber and mineral interests in Farmington Township. He also
stated that the construction and operation of the landfill would
have a negative pecuniary effect on the mineral interests and that
he also believed that the real estate value of the partnership
property would be affected negatively. The mineral interests owned
by the partnership are adjacent to the landfill and consist of
approximately seventy to eighty acres.
Your request for an advisory further states:
For purposes of this requested opinion,
you may assume that it would be the general
consensus of opinion that the construction and
operation of the landfill would generally
adversely affect the value of real estate in
the Township, with the extent of the effect to
be depending in part upon the closeness of the
property to the landfill. For purposes of
this opinion, you may assume that the Ochs own
the following respective interests in real
estate in Farmington Township:
(1) Theodore Ochs, as a 12 -1/2% stockholder
in a corporation, owns 507 acres;
(2) Theodore Ochs, as a 50% partner, owns 114
acres which includes the mineral
interests;
(3)
Theodore Ochs is the sole owner of 121
acres; and
(4) Theodore Ochs and Janet M. Ochs own 90
acres (residence property).
Letter of September 25, 1992, at 2.
Henry Ray Pope, III, Esquire
December 4, 1992
Page 3
You state that the law firm representing the landfill claims
that Ms. Ochs has a conflict of interest and should not vote on
landfill issues. Ms. Ochs claims that she was elected to represent
the interests of the Township who were opposed to the landfill and
that she should not be precluded from voting on matters involving
the landfill. Ms. Ochs has acknowledged that she has a conflict
with the landfill owners, but insists that her position is based
upon what she and the people who elected her believe are the best
interests of the Township.
Based upon the above, you request an advisory as to whether
Ms. Ochs should abstain from voting upon matters involving the
landfill, such as the adoption or enforcement of ordinances which
affect the landfill's operation. If a conflict does exist, you ask
whether the conflict would cease to exist if Theodore Ochs would
divest himself of any partnership interest which he has in real
estate interests adjacent to the landfill.
Discussion: As a Township Supervisor for Farmington Township in
Clarion County, Pennsylvania, Ms. Janet Ochs 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
Henry Ray Pope, III, Esquire
December 4, 1992
Page 4
employee, a member of 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.
"Immediate family." A parent, spouse,
child, brother or sister.
"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 anything 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
been 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
Henry Ray Pope, III, Esquire
December 4, 1992
Page 5
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 and to publicly disclose the
abstention and reasons for same, both orally and by filing a
written memorandum to that effect with the person recording the
minutes or supervisor.
In the event that the required abstention results in the
inability of the governmental body to take action because a
majority is unattainable due to the abstention(s), then in that
event participation is permissible provided the disclosure
requirements noted above are followed. See, Mlakar, Advice 91 -523-
5.
In applying the above provisions of the Ethics Law to the
circumstances which you have submitted, pursuant to Section 3(a) of
the Ethics Law, a public official /public employee is prohibited
from using the authority of public office /employment or
confidential information received by holding such a public position
for the private pecuniary benefit of the public official /public
employee himself, any member of his immediate family, or a business
with which he or a member of his immediate family is associated.
It is important to note that the substantive views of Ms. Ochs
or her husband would not form the basis for a conflict of interest.
However, should Ms. Ochs, an immediate family member, or a business
with which Ms. Ochs or an immediate family member is associated, be
involved in litigation pertaining to the landfill, a conflict of
Henry Ray Pope, III, Esquire
December 4, 1992
Page 6
interest would exist for Ms. Ochs.
In DeLano, Opinion 88 -008, the State Ethics Commission
considered the issue of whether a conflict of interest would exist
for a second class township supervisor in matters relating to a
proposed landfill when the supervisor was a member of a citizens
group involved in litigation as to an existing incinerator on the
site of the proposed landfill, which incinerator was operated by
the same owners of the landfill but through a different corporate
entity. In that case, the Commission found that a conflict existed
because of the supervisor's involvement in the litigation, which
conflict could be removed by withdrawing from being an active
participant in the citizens group and from involvement in the law
suit. The Commission stressed:
Additionally, this Opinion should not be
construed to mean that a candidate's stand on
an issue creates a conflict as to his voting
on an issue; to the contrary, the Ethics Act
does not preclude such action. However, when
that public official becomes personally,
financially or privately involved with that
issue which is separate and apart from his
public office, then a conflict exists which
requires abstention.
DeLano, Opinion 88 -008 at 4.
Similarly, in this case, Ms. Ochs' views or those of her
husband regarding the landfill would not form the basis for a
conflict of interest under the Ethics Law.
You have stated that Ms. Ochs has withdrawn as a party to all
appeals pertaining to the landfill and has resigned as an active
member of the citizens group which opposes the landfill. The facts
which you have submitted do not reveal the current status of any
such involvement of Ms. Ochs' spouse, other immediate family
members, or businesses with which Ms. Ochs or an immediate family
member is associated. To the extent any immediate family member of
Ms. Ochs -- including her spouse -- or any business with which Ms.
Ochs or a member of her immediate family is associated is a party
to litigation involving the landfill, Ms. Ochs would have a
conflict of interest as to matters involving the landfill.
Additionally, there is another, separate basis for the
existence of a conflict of interest in this case -- specifically
the real estates interests which are involved.
Ms. Ochs and Mr. Ochs own ninety acres in Farmington Township
as their residence property. Mr. Ochs is the sole owner of an
Henry Ray Pope, III, Esquire
December 4, 1992
Page 7
additional 121 acres, and is a partial owner of other large tracts
of land in Farmington Township. As a 50% partner, Mr. Ochs owns
114 acres adjacent to the landfill which includes mineral
interests. As a 12 -1/2% stockholder in a corporation, Mr. Ochs
owns 507 acres.
Ms. Ochs has previously testified that the construction and
operation of the landfill would decrease the property value of the
residence property which is located more than two miles away from
the landfill. Mr. Ochs has previously testified that the
construction and operation of the landfill would have a negative
financial effect on the aforesaid mineral interests and that he
also believed that the real estate value of the partnership
property would be negatively affected. The facts which you have
submitted do not reveal the distance from the landfill of Mr. Ochs'
other real estate interests or the extent to which they would be
affected by the proposed landfill.
Given the admissions of Mr. and Ms. Ochs as to the financial
impact the landfill would have upon their various real estate
interests, a conflict of interest would exist independently on that
basis, unless the following exclusionary language set forth in the
definition of "conflict or conflict of interest" would apply:
65 P.S. §402.
"Conflict" or "conflict of interest" does not
include an action . . . 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 of his immediate family or
a business with which he or a member of his
immediate family is associated.
The Commission has found that the above exclusionary language
does not apply where the nature and /or extent of the real estate
holdings of the public official and /or an immediate family member
preclude membership within the subclass of typical land owners.
Mihalik, Opinion 90 -002 (Conflict existed as to comprehensive
sewage plan where supervisor and his brother owned extensive land
holdings in township, and had sold an option to purchase property
which would be affected by the comprehensive sewage plan both as to
value and desirability). See also, Dettra, Opinion 89 -021.
In this case, Ms. Ochs has an ownership interest in a ninety
acre residence property which she shares with her husband. It
appears to be questionable, but the limited submitted facts do not
conclusively reveal whether this real estate interest of Ms. Ochs
Henry Ray Pope, III, Esquire
December 4, 1992
Page 8
would permit her to be considered as a member of the subclass of
typical land owners within the Township.
However, Mr. Ochs' extensive and varied land holdings would
independently establish a conflict of interest for Ms. Ochs. Mr.
Ochs is an immediate family member. It is obvious that given Mr.
Ochs' extensive land holdings and related interests in timber and
minerals, neither Mr. Ochs nor the businesses with which he is
associated would fit within a qualifying subclass so as to invoke
the application of the aforesaid exclusionary language. Therefore,
Ms. Ochs would have a conflict of interest as to matters involving
the landfill.
In each instance of a conflict of interest, Ms. Ochs would be
required to abstain from any participation of any nature whatsoever
and to fully satisfy the disclosure requirements of Section 3(j).
Your final question is whether a conflict would cease to exist
if Mr. Ochs would divest himself of any partnership interest in
real estate interests adiacent to the landfill.. Your question
cannot be answered on the basis of the limited facts which you have
submitted. You have not provided the requisite information as to
the extent to which the landfill would affect Mr. Ochs' other
extensive land holdings. Additionally, so long as Mr. Ochs would
be associated with any given business so affected by the landfill
to preclude application of the exclusionary language, a conflict of
interest would continue to exist for Ms. Ochs.
However, if the Board of Supervisors is a three - member board
and would become deadlocked on a matter pertaining to the landfill
after Ms. Ochs has fully abstained and complied with the
disclosures requirements of Section 3(j), then Section 3(j) of the
Ethics Law would allow Ms. Ochs to vote.
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 Township Supervisor for Farmington Township in
Clarion County, Pennsylvania, Ms. Janet Ochs is a public official
subject to the provisions of the Ethics Law. Ms. Ochs would have
a conflict of interest as to matters pertaining to the proposed
landfill in Farmington Township. In each instance of a conflict of
interest, Ms. Ochs would be required to abstain from participation
of any nature whatsoever and to fully satisfy the disclosure
requirements of Section 3(j) of the Ethics Law as set forth above.
If the Board is a three- member board, in the event that a deadlock
Henry Ray Pope, III, Esquire
December 4, 1992
Page 9
would occur due to the abstention of Ms. Ochs, Section 3(j) of the
Ethics Law would then allow Ms. Ochs to vote provided she had
previously fully abstained and satisfied the disclosure
requirements of Section 3(j). 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 §2.12.
ncerely,
ti;A I
Vincent Dopko
Chief Counsel