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HomeMy WebLinkAbout92-647-SRichard W. Kooman, II, Esquire Marianne Professional Center P.O. Box 700 Clarion, PA 16214 Dear Mr. Kooman: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 11, 1993 92 -647 -S Re: Conflict, Public Official /Employee, Township Supervisor, Use of Authority of Office or Confidential Information, Proposed Landfill, Citizens Group, Law Suit, Real Estate Interest of Public Official or Immediate Family Member, Subclass, Supplemental Advice. This responds to your letter of December 21, 1992, in which you requested supplemental advice from the State Ethics Commission. Issue: Whether a township supervisor, her spouse, and /or businesses with which the spouse is associated would belong to a qualifying subclass of landowners so as to bring the supervisor within the statutory exception to the definition of "conflict" or "conflict of interest" in matters pertaining to a proposed landfill, where none of the real estate parcels belonging to the other members of the proffered subclass run contiguous to the landfill, and if a conflict does exist, whether and to what extent the Ethics Law would restrict the township supervisor's participation in various township meetings and /or township actions involving the landfill. Facts: In the capacity of private legal counsel, you seek a supplemental advisory from the State Ethics Commission on behalf of Ms. Janet Ochs, a Farmington Township Supervisor. Following initial letters of request dated September 25, 1992, and October 12, 1992, Advice of Counsel No. 92 -647 was issued which is incorporated herein by reference. That Advice concluded that Ms. Ochs would have a conflict of interest as to matters pertaining to the proposed landfill in Farmington Township, and would be required in each instance of a conflict of interest to abstain from participation of any nature whatsoever and to fully satisfy the disclosure requirements of Section 3(j) of the Ethics Law. The Richard W. Kooman, II, Esquire February 11, 1993 Page 2 Advice further noted that if the Board is a three - member board, in the event a deadlock 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). Advice No. 92 -647 identified two independent bases for Ms. Ochs' conflict. First, the Advice concluded that although Ms. Ochs had withdrawn as a party to all appeals pertaining to the landfill and had resigned as an active member of the citizens group opposing the landfill, 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 remained a party to litigation involving the landfill, Ms. Ochs would have a conflict of interest as to matters involving the landfill. Second, the extensive and varied landholdings in which Mr. Ochs had an interest established an independent basis for a conflict of interest for Ms. Ochs. Based upon the information which had been submitted, the Advice concluded that given Mr. Ochs' extensive landholdings and related interests in timber and minerals, neither he nor the businesses with which he is associated would fit within a qualifying subclass so as to invoke the application of the exclusionary language found in the definition of "conflict" or "conflict of interest" as set forth in the Ethics Law, which provides 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 df 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. Richard W. Kooman, II, Esquire February 11, 1993 Page 3 65 P.S. §402 (Emphasis added). Following the issuance of Advice No. 92 -647, you have requested a supplemental advisory based upon certain additional facts which you have provided. The additional facts provided in your letter are set forth verbatim: Mrs. Ochs believes that additional information must be presented and considered before a fully informed decision can be rendered. First, you should know that on May 6, 1992 the Farmington Township Board of Supervisors unanimously adopted Ordinance No. 92 -2 (the "Ordinance "). The Ordinance established procedures and fixed requirements and regulations and standards covering the collection, transportation, processing, generating, treatment and disposal of solid waste, hazardous water, residual waste, infectious and chemotherapeutic waste, municipal waste, special handling waste, sludge and other materials related thereto within Farmington Township. The Ordinance impacts the collection and transportation of municipal and residual waste by County Environmental Services, Inc. and the operation of the Landfill by its sister corporation, County Landfill, Inc. County Landfill, Inc., County Environmental Services, Inc. and their parent, Envirite Corporation, have initiated a civil action in the Court of Common Pleas of Clarion County, Pennsylvania at No. 1859 of 1992 against Farmington Township and each of its supervisors, including Mrs. Ochs, seeking to declare the Ordinance unenforceable and to enjoin the Supervisors from enforcing the Ordinance (the "Lawsuit "). A copy of the complaint filed in the Lawsuit is enclosed. A copy of the Ordinance is attached to the complaint. We note that count seven of the complaint starting on page 41 seeks relief from the Ordinance on the basis that Mrs. Ochs voted to adopt the Ordinance at a time when it is alleged she had a conflict of interest. We understand that the Ethics Commission does not evaluate past actions. The clarification and supplemental advice which Mrs. Ochs is now seeking concerns only the nature and extent of her future participation in the defense of the Richard W. Kooman, II, Esquire February 11, 1993 Page 4 Lawsuit, enforcement of the Ordinance and amendment of the Ordinance. Secondly, you should know that Mrs. Ochs' husband has withdrawn as a party to all pending litigation initiated by Farmington Township residents seeking to set aside certain agreements between County Landfill, Inc. and the Department of Environmental Resources and /or seeking to revoke certain permit modifications issued to County Landfill, Inc. and the Department of Environmental Resources (collectively the "DER Litigation "). Neither Mrs. Ochs nor any other immediate family member remain a party to the DER Litigation. Third, you should know that the nature and extent of the Farmington Township property holdings of Mr. and Mrs. Ochs and related entities are substantially the same as the Farmington Township holdings of a substantial number of other persons and corporations which constitute a subclass under 65 P.S. 402. As proof of this fact, we are enclosing a summary of information compiled from the assessment records of Clarion County concerning the nature and extent of the Farmington Township property holdings of ten (10) unrelated persons and corporations as well as the holdings of Mr. and Mrs. Ochs and related entities. The distance or physical relationship of these holdings to the Landfill are depicted on a coded map which is also enclosed. The enclosed summary requires some explanation. The right hand column reflects the type or use of each property as reflected on the Clarion County assessment records. The symbol A indicates agriculture, M indicates mineral and P indicates public use. Agriculture generally indicates land used for traditional farming activities or to grow and harvest timber. With only a few small exceptions, Mrs. Ochs states that there are no traditional farming activities conducted on the agricultural properties listed on the summary and that all of the agricultural owners listed harvest timber from their Richard W. Kooman, II, Esquire February 11, 1993 Page 5 property. In most instances, properties assessed for agricultural use also include the mineral interest but a separate assessment is not made for minerals. A mineral assessment is only made in those instances where one person owns the mineral interest and someone else owns the surface. Public properties consist of state park and game lands where the Commonwealth and Game Commission harvest and sell timber on a selective basis. The enclosed summary includes the property holdings of Regis Ochs Lumber and Ochs Lumber Company, Inc. Regis Ochs Lumber is a partnership owned equally by Mr. Ochs and his brother. Ochs Lumber Company, Inc. is a corporation in which Mr. Ochs owns 12.5% of the issued and outstanding stock. The remaining stock in Ochs Lumber Company, Inc. is owned by uncles, cousins and a brother of Mr. Ochs. The principal business of both Regis Ochs Lumber and Ochs Lumber Company, Inc. is the harvesting and sale of timber. The 90 acres owned jointly by Mr. and Mrs. Ochs is also held for the harvesting and sale of timber. With this explanation of the enclosed assessment summary, we present the following condensation of the Farmington Township public, timber and mineral holdings of the related and various unrelated parties for your quick reference: Unrelated Owners Commonwealth of Pennsylvania 7,910 Seneca Resources 4,482 390 Georgia Pacific 3,524 Larry D. Heasley 973 Glenn K. Rodenmoyer 707 National Fuel Gas Co. 667 Charles R. Alexander 510 North Penn Gas Co. 467 County Landfill, Inc. 398 Collins Pine 340 Acres Use Richard W. Kooman, II, Esquire February 11, 1993 Page 6 Related Owners Acres Use Regis Ochs Lumber 933 A 57 M Ochs Lumber Company 415 A Theodore Ochs 161 A Theodore and Janet Ochs 90 A (Letter of December 21, 1992, at 1 -4). The documents which you have submitted and which are referenced in your letter, specifically the complaint and its attachments, the five -page summary of information compiled from the Clarion County assessment records concerning the nature and extent of the Township property holdings of the proffered subclass members, and the coded map, are all incorporated herein by reference. It is noted that the map does not show a scale, but it is clear from the sizes of various parcels on the map that the highlighted parcels belonging to the proffered subclass members not only vary significantly in size, but also in their respective distances from the landfill. You state your opinion that the map shows that the location of the landfill relative to the properties of the related owners is not significantly different from that of the unrelated owners. You submit your belief that under these circumstances, Ms. Ochs does not have a conflict of interest which would prevent her from acting in her official capacity on matters relating to the Landfill and the related collection and transportation activities, based upon your belief that she would be a member of a subclass affected to the same degree by such matters. If this Supplemental Advice accepts your position, you state that no further advice is required. However, if this Supplemental Advice concludes that Ms. Ochs still has a conflict of interest in such matters, you request clarification concerning the nature and extent of her involvement in matters concerning the defense of the law suit, enforcement of the Ordinance, and amendment of the Ordinance. You acknowledge that the Farmington Township Board of Supervisors is a three - member Board and that Ms. Ochs may therefore act in accordance with Section 3(j) of the Ethics Law by disclosing any conflict and then voting to break any tie votes between the other two Members. You state that Ms. Ochs believes that she should continue to participate in all matters in which she may have a conflict of interest so that she will be able to cast an informed vote in the event that she is called upon to break a tie. You specifically inquire as to whether Ms. Ochs may: attend public meetings, executive sessions and private meetings with the Township Solicitor concerning the defense of the law suit and/or the enforcement or amendment of the Ordinance; ask questions at such Richard W. Kooman, II, Esquire February 11, 1993 Page 7 meetings; and /or comment at such meetings upon the advantages and disadvantages of various actions contemplated by the Board. You note that the law suit is presently in the pleading stage and discovery is about to begin. However, you state that the Township Solicitor has refused to permit Ms. Ochs to attend meetings with him or to otherwise participate in decisions concerning the defense of the law suit even though she is a named party to the action. You state that the Township Solicitor is taking this position based upon the initial Advice. Based upon all of the above, you request a supplemental advisory in this matter. Discussion: The relevant provisions of the Ethics Law applicable to this matter have already been fully set forth in Advice No. 92- 647 and are incorporated herein by reference. The focus of this Supplemental Advice shall be directed toward the specific issues which you have raised in light of the additional facts which you have provided following the issuance of Advice No. 92 -647. The threshold issue is whether a conflict of interest exists under the additional facts which you have submitted. The first basis for a conflict which was identified in Advice 92 -647, specifically involvement in litigation, may still exist. You state that Ms. Ochs' spouse has withdrawn as a party to all pending litigation involving the landfill, and that neither Ms. Ochs nor any of her immediate family members remain a party to the "DER Litigation." You have not indicated whether any . other immediate family member remains a party to other litigation, nor have you indicated the litigation status of businesses with which Ms. Ochs and /or member(s) of her immediate family are associated. As for the second, independent basis identified in Advice 92- 647 for a conflict of interest, specifically the extensive landholdings of Mr. Ochs and the businesses with which he is associated, you contend that the landholdings of Mr. and Ms. Ochs and related entities are substantially the same as the Farmington Township holdings of a substantial number of other persons and corporations, whom you suggest are members of a subclass affected to the same degree by the landfill and related matters. However, in this case, there is one undeniably distinguishing feature between Ochs - related land interests and those of the other landholders proffered as a subclass. That distinguishing feature is the fact that none of the other landholders' parcels run contiguous to the landfill -- only parcels . belonging to Regis Ochs Lumber do so. (One other proffered parcel owned by Charles Alexander includes a thin strip which juts out to a point which Richard W. Kooman, II, Esquire February 11, 1993 Page 8 appears to touch the landfill). Thus, the additional facts which have been submitted do not establish a qualifying subclass in which Ochs property interests would be affected to the same degree as the other members of the proffered subclass. Ms. Ochs would therefore have a conflict of interest in matters involving the landfill. This conclusion is in accord with prior Commission decisions. The Commission has narrowly construed the statutory exception based upon a qualifying subclass. See, Cappabianca, Opinion 89- 014 -R; see also, Mihalik, Opinion 90 -002. Having reached the above conclusion, your additional questions will now be addressed. You first seek clarification of Advice 92 -647 concerning the nature and extent of Ms. Ochs' involvement in matters concerning the defense of the law suit, enforcement of the Ordinance, and amendment of the Ordinance. Your question is general in nature and necessitates a general response. To the extent the proposed conduct of Ms. Ochs would be in her official capacity as a Township Supervisor on landfill related matters, she would generally have a conflict of interest. The same principle would apply to address your final inquiries. As for whether Ms. Ochs has the right to attend public meetings, given that the very nature of a public meeting involves public attendance and belies any confidentiality as to the matters discussed, Ms. Ochs would be able to attend the public meetings. However, she could not act in her official capacity as to matters involving the landfill. As for executive sessions, given that attendance would inherently be in the role of Township Supervisor, and the information discussed would likely be confidential, Ms. Ochs could not be present as to matters involving the landfill. As for private meetings with the Township Solicitor concerning the defense of the law suit, the Complaint states that Ms. Ochs is being sued in her official capacity. Complaint at paragraph 5. Therefore, Ms. Ochs would have a conflict precluding her from attending such meetings because she would be acting in an official capacity, and official involvement in the Township's defense of the law suit would have a financial impact upon the landholdings of Mr. Ochs and /or the businesses with which he is associated. As for the enforcement or amendment of the Ordinance, such would inherently involve official action and therefore would constitute a conflict of interest for Ms. Ochs. Finally, as for your proposal that Ms. Ochs ask questions at Richard W. Kooman, II, Esquire February 11, 1993 Page 9 such meetings and comment at such meetings, such would appear to be the use of authority of office in the capacity of Township Supervisor and therefore would be prohibited as to landfill matters. Section 3(j) allows votina a conflict, under a very clearly defined process. Specifically, as one Member of a three - Member Board, Ms. Ochs would be able to vote to break a deadlock conditioned upon the prerequisites that she first fully-abstain and make the appropriate disclosures under Section 3(j). Your proposal that Ms. Ochs participate by asking questions at meetings and commenting at meetings would violate the prerequisite of full abstention upon which the exception for breaking a tie vote is conditioned. See, Rankin, Order 806; Juliante, Order 809. 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 in her capacity as a public official as to matters pertaining to the landfill in Farmington Township. In each instance of a conflict of interest, Ms. Ochs would be required to fully abstain from participation and to fully satisfy the disclosure requirements of Section 3(j) of the Ethics Law as set forth in Advice 92 -647 and incorporated herein. The restrictions set forth above as to official participation and attendance at meetings must be observed. Given that the Board is a three - Member Board, in the event that a deadlock 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 Richard W. Kooman, II, Esquire February 11, 1993 Page 10 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. 'ncerely, Vincent J Dopko Chief Counsel