HomeMy WebLinkAbout93-549 GretkowskiW. J. Mike Gretkowski
Stroud Township
1211 North Fifth Street
Stroudsburg, PA 18360
Re: Conflict,
Public Official /Employee, Township Supervisor,
Subdivision Plan, Alleged Bias.
Dear Mr. Gretkowski:
This responds to your letter of March 22, 1993, 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 to s hs e has with regard to a proposed final subdivision plan that the it
supervisor
suggested in a law suit against the township
has a conflict of interest based upon "bias, prejudice, or
prior actions
anions given his involvement in sa from the
preconceived d and court appeals on� hearing board the zoning
preliminary approval of the subdivision p lan.
Facts: As a Supervisor for Stroud Township, Pennsylvania, you
request an advisory from the State Ethics Commission regarding a
potential conflict of interest.
You have submitted a copy
of a Notice of Appeal bearing the
caption, Ko elson v. Stroud Townshi Board PeSuservisors, filed led in
the Court of Common Pleas of Monroe County, eel is incorpora
number indicated). The said Notice
to aAPsubdivision plan for
herein by reference, and p l The Estates," submitted to the Township for a p e
approval. he
sole portion of this pleading which alleges a
interest" for you is at paragraph 10 which provides:
10. Appellant further contends that Board
Member Supervisor W. J. Mike Gretkowski has an
obvious conflict of interest in that Mr.
Gretkowski was a party litigant to an action
r ^t
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108-1470
TELEPHONE (
(717) 783 - 1
0
ADVICE OF COUNSEL
April 14, 1993
93 -549
W. J. Mike Gretkowski
April 14, 1993
Page 2
commenced before the Township Zoning Hearing
Board and also before the Court of Common
Pleas under No. 905 Civil Term 1988 wherein he
and others attempted to appeal from the
preliminary approval of this subdivision plan.
Appellant contends that the Supervisors are
obligated to conduct an objective review of
the final subdivision plan without bias,
prejudice or preconceived opinions.
Notice of Appeal at paragraph 10.
After referencing a telephone conversation with Commission
staff, you state that you have removed yourself from further
consideration of this matter because of threatened litigation
against you for "alleged conflict of interest" and violation of the
developer's civil rights as per the 1983 civil rights law. You
state that there was another vote on this matter from which you
abstained because of the threats from the developer's attorney.
You state your belief that you have no conflict in this
matter. You indicate that your position was well known before you
were elected on November 3, 1991, and you believe that you should
not be denied your rights nor should your constituents be denied
their rights for representation.
Based upon the above, you request an advisory from the State
Ethics Commission.
Discussion: As a Supervisor for Stroud Township, Pennsylvania, you
are a public official as that term is defined under the Ethics Law,
and hence you are 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
W. J. Mike Gretkowski
April 14, 1993
Page 3
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 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.
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
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
W. J. Mike Gretkowski
April 14, 1993
Page 4
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.
Before applying the above provisions of the Ethics Law to your
inquiry, it is initially noted that pursuant to Sections 7(10) and
(11) of the Ethics Law, 65 P.S. §5407(10), (11), advisories are
issued as to future conduct only. Furthermore, advisories are
issued to the requestor based upon the facts which the requestor
has submitted. In issuing the advisory based upon the facts which
the requestor has submitted, the Commission does not engage in an
independent investigation of the facts, nor may it speculate as to
facts which have not been submitted. It is the burden of the
requestor to truthfully disclose and provide all of the material
facts relevant to the inquiry. 65 P.S. 5407(10), (11); See also,
Confidential Opinion 90 -012 (Requestor bears the burden of
supplying factual circumstances in appeal of Advice).
In applying the above provisions of the Ethics Law to the
limited facts which you have submitted, it is not clear whether you
are presently a party to any appeals from the preliminary approval
of the subdivision plan. 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
W. J. Mike Gretkowski
April 14, 1993
Page 5
received by holding such a public position for the private
pecuniary benefit of the public official /public employee himself,
any member of immediate family, or a business with which he or
a member of his immediate family is associated. It is important to
note that your substantive views would not form the basis for a
conflict of interest under the Ethics Law. However, should you, an
immediate family member, or a business with which you or an
immediate family member is associated, be presently involved in
litigation appealing the preliminary approval of the subdivision
plan, a conflict of interest would exist for you.
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, your views regarding the subdivision
would not form the basis for a conflict of interest under the
Ethics Law. However, to the extent that you, any member of your
immediate family, or any business with which you -or a member of
your immediate family is associated is a party to litigation
appealing from the preliminary approval of the subdivision plan,
you would have a conflict of interest as to matters involving the
final subdivision plan.
In this case, conditioned upon the assumption that neither
you, any member of your immediate family, nor any business with
which you or a member of your immediate family is associated is
presently involved in any appeal from the preliminary approval of
W. J. Mike Gretkowski
April 14, 1993
Page 6
the subdivision plan, the sole remaining bases suggested for a
conflict of interest are "bias, prejudice, or preconceived
opinions." These would not establish a private pecuniary benefit
which is a necessary element for finding a conflict of interest
under the Ethics Law. Thus, under the facts which you have
submitted, and conditioned upon the above assumption, you would not
have a conflict of interest under the Ethics Law as to the proposed
final subdivision plan.
This advisory should not be misconstrued as a blanket approval
of your participation in this matter under other laws or judicial
case law pertaining to bias and the like. Such other legal
authorities do not involve the Ethics Law, and the State Ethics
Commission would not have the express statutory authority to
interpret or enforce them. It is recommended that you seek the
advice of legal counsel in this regard.
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, or
judicial case law pertaining to bias.
Conclusion: As a Township Supervisor for Stroud Township,
Pennsylvania, you are a public official subject to the provisions
of the Ethics Law. Under the initial facts which you have
submitted and subject to the conditions, restrictions and
qualifications noted above, you would not have a "conflict of
interest" under the Ethics Law as to the matter of the proposed
final subdivision plan for Shelbrooke Estates. 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
W. J. Mike Gretkowski
April 14, 1993
Page 7
the Commission within 15 days of the date of this Advice pursuant
to 51 Pa. Code §2.12.
Sincerely,
& , / /: 7 0744 //
Vincent . Dopko
Chief Counsel