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HomeMy WebLinkAbout94-503 BartgesSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 12, 1994 Jeffrey A. Bartges, Esquire 94-503 Mullane and Bartges Shepherd Hills Center - Suite 101 5930 Hamilton Boulevard Allentown, PA 18106 Re: Conflict, Public Official /Employee, Township Commissioner, Use of Authority of Office or Confidential Information, Ownership of Property in Township, Acquisition of Additional Land from Developer, Gift. Dear Mr. Bartges: This responds to your letter of December 6, 1993, in which you requested advice from the State Ethics Commission. Issue: Whether, under the Public Official and Employee Ethics Law, a township commissioner may receive additional land from a developer within the township and whether such receipt constitutes a gift under the Ethics Law. Facts: As Solicitor for Whitehall Township, Lehigh County, Pennsylvania, you request an advisory on behalf of Glenn D. Solt, a Member of the Whitehall Township Board of Commissioners. You provide the following background information. In 1993, a Subdivision and Land Development Plan was submitted to Whitehall Township by Wal -Mart, a major retail discount outlet. The plan proposed the construction of a Wal -Mart store on a parcel of approximately 80 acres located in Whitehall Township. There is an existing strip mall on this property. Mr. Solt has owned a small adjoining out - parcel at the edge of this property. He leases this out - parcel to a daycare center and other tenants, including a beauty shop and tanning salon. Early in the subdivision and land development review process, it became apparent that traffic lanes would need to be realigned and widened on Schadt Avenue to effectuate smooth and safe traffic movement in accordance with Pennsylvania Department of Jeffrey A. Bartges, Esquire January 12, 1994 Page 2 Transportation ( "PennDOT ") requirements. Circulation patterns were established by the owner of the parcel, Vornado, the developer, Wal -Mart, and the Township Consulting Engineer, Keystone Consulting Engineers, with reference to both PennDOT standards and the Subdivision and Land Development Ordinance of Whitehall Township. It became apparent that part of the traffic flow pattern would need to circulate over and across part of Solt's property and /or would affect his easement rights with regard to circulation from the strip mall. The traffic volumes expected on Schadt Avenue warranted a widening of the road cartway width by approximately four feet. It was decided to do all the widening on the north side of Schadt Avenue along properties owned by Solt, Wal -Mart and Vornado. The only ingress- egress for Solt's property was just west of the newly designed intersection. A concern was raised that with a light at that intersection, access to Solt's property would be compromised due to stacking at the light, the inability to make a lefthand turn and traffic staging patterns. The four foot widening of Schadt Avenue would require the construction of a retaining wall along the south edge of Solt's property where a 2:1 slope grass bank currently exists. The outcome of the discussions between the developer and Solt was that his property would be given access out the back of the property to alleviate the problem created in the front. It was agreed between the landowners that there would be a secondary access driveway to the Wal -Mart South driveway which Wal -Mart would install together with parking adjustments to facilitate the free flow of traffic and expected parking to the north on Solt's property. In addition, Solt's property would be enlarged by the addition of a grassy tot lot consisting of approximately 1800 square feet which would be an accessory for use by the daycare center. To compensate for the six lost parking spaces, six relocated spaces would be added to the property (1900 square feet) and paving costs will be shared between Solt and Wal -Mart. Although you were not in attendance at the early engineering meetings, it is your understanding that Solt was invited to and did attend one or more of these meetings. When initially introduced as one of the Commissioners, he stated in essence that he was there as citizen Glenn Solt, as a neighboring landowner, but not in his capacity as a Commissioner. The Land Development Plan for Wal -Mart proceeded through normal channels of review by the Planning Commission and was brought before the Commissioners for approval of a Final Land Development Plan Approval. During the course of discussions, Solt abstained from voting on the Resolution and abstained from any discussion of the merits of the Resolution. Solt did, however, Jeffrey A. Bartges, Esquire January 12, 1994 Page 3 respond to inquiries regarding his land ownership in the area and in response to a question from another Commissioner, he stated that the ultimate result of this Plan would be that he would acquire more square footage at the conclusion of the real estate transaction than he had at the beginning of the transaction. To the best of your knowledge, no real estate transaction has occurred which would deed over the tot lot, the parking spaces, the driveway or the easement rights between Solt and Wal -Mart, even though the Land Development Plan has been approved. Throughout the land development review process, you are aware of no efforts by Solt to threaten the developer that he could "hold up" the project, nor any comments from Solt that he could "speed up" the project in exchange for any real estate or easement trades or revisions to plans for development. A concern has been raised as to whether Solt, as a Commissioner, received a "gift" of additional real estate since he will have acquired more real estate that he had given up in the process. Since the Township would not be a party to any such private transactions between landowners, the Township administration has not reviewed any formal real estate appraisals of land valuation, if any exist, or the price paid for easement or fee simple acquisition, if any is to be paid. Based upon the above, you request an advisory from the State Ethics Commission as to whether any of the above constitutes inappropriate activity as defined by the Ethics Law and whether a gift has been received by Commissioner Solt. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. § 5407(10), (11), 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 does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 P.S. §5407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Commissioner for Whitehall Township, Glenn Solt is a public official as that term is defined under the Ethics Law, and hence he is subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. Jeffrey A. Bartges, Esquire January 12, 1994 Page 4 (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 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. "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 Jeffrey A. Bartges, Esquire January 12, 1994 Page 5 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. 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. 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) from conflict under the Ethics Law, then in that event participation is Jeffrey A. Bartges, Esquire January 12, 1994 Page 6 permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. As to all the activity that has taken place to date, the Ethics Commission does not issue advisories regarding past conduct. Sections 7(10) and 7(11) of the Ethics Law clearly sets forth that an opinion or advice may be given only as to the prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion or 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. In this case, all of Mr. Solt's past activity to date is beyond the scope of this Advice. This advisory cannot address the discussions and negotiations between the Developer, the engineer and Solt. Further, any conduct of Solt at the early engineering meetings cannot be addressed as also being past conduct. The Ethics Law pursuant to Section 3(a) prohibits a public official from using the authority of public office or confidential information received by holding a public office for the private pecuniary benefit of the public official, any member of his immediate family, or a business with which he or a member of his immediate family is associated. In this case, there does not appear to be any real possibility of a private pecuniary benefit or inherent conflict arising from this transaction merely from serving as a Member of the Whitehall Township Board of Commissioners. The foregoing is based upon the factual assumptions that there would not be any private pecuniary benefit to him as a result of his actions and that there was not any use of authority of office by Mr. Solt as to this transaction. This Advice also expressly assumes that Sections 3(b) and 3(c) are not applicable in that there is no giving or receiving of anything of monetary value with an understanding that the public official's vote would be influenced thereby. As to the question of whether Solt will receive a gift, Section 2 of the Ethics Law defines the term "gift" as follows: Section 2. Definitions "Gift." Anything which is received without consideration of equal or greater value. "Gift" shall not include a political contribution otherwise reported as required by law or a commercially reasonable loan made in the ordinary course of business. Jeffrey A. Bartges, Esquire January 12, 1994 Page 7 65 P.S. S402. Further, Section 5(a) states as follows: Section 5. Statement of financial interests (a) The statement of financial interests filed pursuant to this act shall be on a form prescribed by the commission. All information requested on the statement shall be provided to the best of the knowledge, information and belief of the person required to file and shall be signed under oath or equivalent affirmation. 65 P.S. S405(a). Section 5(b)(6) states as follows: Section 5. Statement of financial interests (b) The statement shall include the following information for the prior calendar year with regard to the person required to file the statement. (6) The name and address of the source and the amount of any gift or gifts valued in the aggregate of $200 or more and the circumstances of each gift. This paragraph shall not apply to a gift or gifts received from a spouse, parent, parent by marriage, sibling, child, grandchild, other family member or friend when the circumstances make it clear that the motivation for the action was a personal or family relationship. However, for the purposes of this subsection, the term "friend" shall not include a registered lobbyist or an employee of a registered lobbyist. This paragraph shall not be applied retroactively. 65 P.S. S405(b)(6). In reviewing this matter, as noted above, the Commission does not engage in independent investigations of fact. Also, the Jeffrey A. Bartges, Esquire January 12, 1994 Page 8 Commission does not speculate as to facts not submitted. In this case, there was not provided any factual documentation as to the question of whether the value of Solt's property would be affected by the transactions and whether such economic impact would consist of an increase or decrease in land values, taxation or some other economic factor(s). It cannot be said that if one owns property adjacent to a development, a pecuniary benefit would automatically follow. See, Laser, Opinion No. 93 -002. Accordingly, if the acquisition of real estate is a gift as defined above, under whatever the factual circumstances are in this case, such must be reported on Solt's Statement of Financial Interests for the year such gift is received provided that the gift is valued at $200.00 or more. If the acquisition of the additional real estate is a gift and is received during the calendar year 1993, then the receipt must be reported on his 1993 Statement of Financial Interests, filed on or before May 1, 1994. 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 First Class Township Code. Conclusion: As a Commissioner for Whitehall Township, Mr. Glenn Solt is a public official subject to the provisions of the Ethics Law. This Advice cannot address any past conduct of Solt in connection with the acquisition of additional land in Whitehall Township. However, if the acquisition of the land is a gift under whatever the factual circumstances are in this case, then the reporting requirements of Section 5(b)(6) must be followed. 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Jeffrey A. Bartges, Esquire January 12, 1994 Page 9 Any such appeal must be in writing and must be actually received at the Commission within fifteen (15) days of the date of this Advice pursuant to 51 Pa.Code §13.2(h). The appeal may be received at the Commission by hand delivery, United States mall, delivery service, or by FAX transmission (717- 787 - 0806). cerely, Vincent J'`: Dopko Chief Counsel