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HomeMy WebLinkAbout94-565 GrahamDonald P. Graham Dillon McCandless & King Cranberry Professional Park 501 Smith Drive, Suite 3 Cranberry Township, PA 16033 Dear Mr. Graham: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 26, 1994 94 -565 Re: Conflict, Public Official /Employee, Borough Council Members, Borough Planning Commission, Mayor, Use of Authority of Office of Confidential Information, Vote, Business with which Associated, Immediate Family, Son, Sister, Sister -in -Law, Husband, Zoning Change. This responds to your letter of April 14, 1994 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 Borough Council Members, a Borough Planning Commission Member and a Borough Mayor from taking action on a zoning change issue and other matters regarding a business with which they or members of their immediate family are associated. Facts: You are the Solicitor for the Borough of Harmony, Butler County, and have been authorized by the Borough Council and the individuals identified in this request to obtain an advisory regarding whether they have conflicts of interest under the facts outlined hereafter. In accordance with the Ethics Act, you request that an advice be provided regarding each of the situations outlined. Paragon Trade Brands, Inc. ( "Paragon "), which is engaged in the manufacture of disposable diapers, has a physical plant located in Harmony Borough. Paragon employs more than 400 people at the plant. Recently, Paragon acquired various properties within the Borough pursuant to a plan to expand its physical plant. Although there has been no official submission to either the Graham, Donald P., 94 -565 April 26, 1994 Page 2 c: Planning Commission or the Borough Council, Paragon has made public its preliminary plans regarding expansion. It is anticipated that a vote of the Borough Council and /or Planning Commission may be required in each of the following situations: 1. Site plan review of any proposed plant expansions. 2. A request to vacate a street. 3. A request for rezoning. The individuals below have requested that you obtain an advisory in advance of any votes so that their obligations under the Ethics Act are established prior to any required votes. Since each individual has a unique circumstance, you have subdivided this request for each individual. RONALD BEHM Mr. Behm is a Member of Borough Council. Mr. Behm has an immediate family member, his son, who is an employee at the Paragon facility in the Borough. Mr. Behm's son was employed by Paragon prior to Mr. Behm becoming a Member of Council and his son does not reside in the same household as Mr. Behm. ANNA KANIGOWSKI Ms. Kanigowski is a member of the Borough Council and also a member of the Planning Commission for the Borough. In her position as a Council member, she could be required to vote on issues involving Paragon and the amendment to the Zoning Ordinance, vacation of a street and site plan review issues. In addition, as a member of the Planning Commission, she would -also be voting on approval or denial of the site plan for Paragon and also recommending approval or denial of any rezoning of property for Paragon. Ms. Kanigowski's property is located near the Paragon plant facility in the Borough. If Paragon carries through with its plan to acquire properties for the expansion of its plant, Ms. Kanigowski's property is one of the properties that . would be acquired. Although there is no contract between Paragon and Ms. Kanigowski regarding the sale of her property at this time, there have been preliminary negotiations regarding the sale of that property to Paragon. It is anticipated that if those negotiations are successful, a contract would be entered into between Paragon and Ms. Kanigowski for the sale of her residence to Paragon. JAMES McCORMICK Mr. McCormick is a member of Borough Council. Mr. McCormick has an immediate family member, his sister, who -is an employee at Graham, Donald P., 94 -565 April 26, 1994 Page 3 the Paragon facility in the Borough. Mr. McCormick's sister was employed by Paragon prior to Mr. McCormick becoming a Member of Council and his sister does not reside in the same household as Mr. McCormick. LINDA McCORMICK Linda McCormick is a member of the Planning Commission. As a member of the Planning Commission, she would be involved in a vote on approval or denial of any site plan submitted by Paragon and also involved in making recommendations regarding any rezoning request. Mrs. McCormick is the wife of James McCormick on the Borough Council and her sister -in -law is employed at Paragon. Mrs. McCormick's sister -in -law was employed by Paragon prior to Mrs. McCormick becoming a member of the Planning Commission and she does not reside with Mrs. McCormick. RICHARD NICKLAS Mr. Nicklas is the Mayor of the Borough of Harmony. As Mayor, in the event there are any tie votes on any issues before Council, he is entitled to vote to break a tie. Mr. Nicklas' private employment involves the sale of insurance products, annuities and mutual funds. The Mayor has provided services to residents of the Borough of Harmony. Some of the Mayor's clients have publicly voiced their opposition to the plans of Paragon. KAREN SHARRAR Mrs.. Sharrar is a member of Council. Mrs. Sharrar and her husband have a family business that involves the sale of certain medical supplies. Paragon has recently contacted Mrs. Sharrar's husband regarding the possibility of purchasing certain products . from him for use in their Harmony plant. At this point in time, no order has been placed by Paragon. Mrs. Sharrar has requested the Ethics Commission give her advice as to whether she would be permitted to vote on issues involving Paragon if there is a potential order and whether that advice would change if Paragon ultimately placed an order with her husband. As indicated previously, there is currently no plan pending before either the Planning Commission or the Borough Council involving Paragon. It is anticipated that such will be presented in the near future and the issues raised regarding potential conflicts of interests will have to be addressed. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. SS407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the Graham, Donald P., 94 -565 April 26, 1994 Page 4 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. § §407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As Council Members, the Planning Commission Members and Mayor for Harmony Borough, these individuals are public officials as that term is defined under the Ethics Law, and hence they 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 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. Graham, Donald P., 94 -565 April 26, 1994 Page 5 "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. 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. 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 Graham, Donald P., 94 -565 April 26, 1994 Page 6 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 permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. You are further advised that the use of authority of office is more than the mere mechanics of voting and encompasses all of the tasks needed to perform the functions of ..a given position. See, Juliante, Order No. 809. Use of authority of office includes discussing, conferring with others, lobbying for a particular result and /or any other use of the authority of office in which the result would be a private pecuniary benefit to a business with which a public official or a member of his immediate family is associated. In applying the Ethics: Law to this case, it is noted that the Ethics Law, pursuant to Section 3(a), prohibits a public_ official from using the authority of office 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 any business with which the public official or a member of his immediate family, or any business with which the public official or a member of his immediate family is associated. Your inquires as to the specific individuals will be addressed seriatim: 1. As to Mr. Ronald Behm, his son is a member of his immediate family as that term is defined by the Ethics Law. Since Mr. Behm's son is employed by Paragon, Paragon is a business with which a member of his immediate family is associated. Thus, he would have a conflict of interest in any matter before the Borough relating to Paragon and the Zoning Ordinance, vacation of streets and site plans. 2. As to Ms. Anna Kanigowski, if there is a reasonable expectation of the possible sale of her property to Paragon, the Ethics Law would prohibit her from voting on the zoning change, vacation of streets and site plans issues, as well as any other matter relating to Paragon. See Amato, Opinion 89 -007. Once a Graham, Donald P., 94 -565 April 26, 1994 Page 7 contract for the sale of Ms. Kanigowski's property is entered into, a conflict of interest would exist and she would be prohibited from voting on any matter relating to Paragon. As to the Planning Commission, you have factually stated that the Planning Commission would vote on approval or denial of a site plan for Paragon. Accordingly, Members of the Planning Commission are public officials as that term is defined by the Ethics Law and are subject to the provisions of that law. Therefore, the advice for Ms. Kanigowski in her position as a Member of Borough Council is equally applicable to her as a Planning Commission Member. 3. As to Mr. James McCormick, his sister is a member of his immediate family as that term is defined by the Ethics Law. Since Mr. McCormick's sister is employed by Paragon, Paragon is a business with which a member of his immediate family is associated. Thus, he would have a conflict of interest in any matter before the Borough relating to Paragon and the Zoning Ordinance, vacation of streets and site plans. 4. As to Ms. Linda McCormick, the term "immediate family" is defined to include a parent, spouse, child, brother or sister. Since Ms. McCormick and her sister -in -law are not in a familial relationship delineated above, Section 3(a) of the Ethics Law would not restrict Ms. McCormick's prospective official participation in matters pertaining to Paragon. However, this Advice is conditioned upon the assumption that neither Ms. McCormick nor any immediate family member, nor any business with which she or a member of her immediate family-is associated, as defined in the Ethics Law, would receive a private pecuniary benefit from her proposed conduct. 5. As to Mr. Nicklas, you have not presented any facts which indicate that he would use the authority of his office or confidential information received through holding such office for the private pecuniary benefit for himself, a member of his immediate family or a business with which he is associated. Therefore, based upon these factual statements, Mr. Nicklas would not have a conflict of interest and Section 3(a) would not prohibit him from voting on any matter relating to Paragon..' 6. As to Ms. Karen Sharrar, as with Ms. Kangowski, reference must be made to Amato, supra. With Ms. Sharrar, if there is a reasonable expectation of the development of a financial or contractual relationship between Paragon and the business with which she and husband are associated, the Ethics -Law would prohibit her from voting on the zoning change, vacation of streets and site plans issues, as well as any other matter relating to Paragon. Once an order is placed, a contractual relationship would be established between her and her husband's business and Paragon. A Graham, Donald P., 94 -565 April 26, 1994 Page 8 such. conflict of interest would exist and Ms. Sharrar would be prohibited in any matter related to Paragon. 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 Borough Code. Conclusion: As Council Members, the Planning Commission Members and Mayor for the Borough of Harmony, these individuals are public officials subject to the provisions of the Ethics Law. Mr. Behm and Ms. McCormick would have conflicts of interest as to any matter before them relating to Paragon, because members of their immediate families are employed by Paragon. Ms. Kangowski would have a conflict of interest as to any matter relating to Paragon if it is reasonably expected that a contract will be established between her and Paragon for the sale of her property or if such contract is, in fact, executed. Ms. Sharrar would have a conflict as to Paragon if it is reasonably expected that a contractual relationship will develop or if such relationship does develop between her and her husband's business and Paragon. Where such conflicts of interest exist, the individuals must not only abstain, but under the provisions of the Ethics Law set forth above, they must also publicly announce the nature of his interest and file a written memorandum with the person recording the minutes, disclosing the nature of the interest. Mr. Nicklas would not have a conflict of interest merely because some clients have voiced opposition to Paragon's plans and subject to the qualifications discussed above, he could vote to break a tie as to any matter involving Paragon. Ms. McCormick, as a Member of the Planning Commission would not have a conflict of interest as to Paragon because of the lack of familial relationship. 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. This letter is a public record and will be made available as Graham, Donald P., 94 -565 April 26, 1994 Page 9 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. 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 mail, delivery service, or by FAX transmission (717- 787 - 0806). ncerely, c Vincent N . Dopko Chief Counsel