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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