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HomeMy WebLinkAbout94-569 McTiernanSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 2, 1994 Robert L. McTiernan, Esquire Solicitor, Municipality of Bethel Park Tucker Arensberg, P.C. 1500 One PPG Place Pittsburgh, PA 15222 Re: Conflict, Public Official /Employee, Rezoning, Property, Developer, Bank, Associated. Dear Mr. McTiernan: 94 -569 Borough, Council, Business with which This responds to your letter of May 2, 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 a borough councilmember from voting on the rezoning of certain property wherein the developer of the property may obtain financing from a bank in which the councilmember is a branch manager. Facts: After Judith A. Lorigan (Lorigan), a Councilmember in Bethel Park, received Advice of Counsel 94 -533 on the issue of whether she may vote on the rezoning of certain property in Bethel Park, certain developments have occurred which require clarification. Further, important facts were not submitted in the prior advice. The rezoning issue which will be revoted by Council at its regular monthly meeting on Monday, May 9, 1994, involves a tract of land in Bethel Park comprised of ninety -six (96) acres of,which eighty (80) are owned by the Bethel Park School District. The property is currently zoned R1 and R3 for residential use but a request has been made by the School District to rezone the property to C -D as a conservation district. The local zoning ordinance for a conservation district permits uses such as farming, single family detached dwellings, golf courses and lakes; however, the School District has requested that the zoning ordinance be amended to permit additional recreational uses such as skating rinks. The McTiernan, Robert L, Esquire, 14 -569 June 2, 1994 Page 2 property in question is not owned by the developer but by the School District which has not successfully sold the property to the developer. Council will address the issues of whether the area should be rezoned from residential to a conservation district and whether the zoning ordinance should be amended to allow for a skating rink in the conservation district. The School District has proposed to sell a four acre parcel of property to the developer to construct an ice skating rink which is proceeding as a private sale pursuant to Section 707(3) of the School Code, 24 P.S. S7- 707(3). In order for the sale to go forward, a hearing must be held in Common Pleas Court with public input. The sale has not yet been approved but a hearing has been scheduled in Common Pleas Court. A sale may not be completed without permission of the Court and a decision has not been made by the Court. A representative of the developer who is working with the School District mentioned to Lorigan a plan to utilize Integra Bank, in which Lorigan is a branch manager, for financing. Inquiry is made as to whether Lorigan may vote with respect to the zoning issues in light of the fact that the developer has indicated that he plans to use Integra. Bank for financing. After referencing Advice 94 -533, you conclude that Lorigan may vote on the issues based upon advice which you rendered as Solicitor. Although you indicate that your advice letter was enclosed with the May 2, 1994 request, no attachment was submitted with your letter. You conclude that the decision Bethel Park Council will make with respect to the rezoning is substantially removed from any decision of the developer to use Integra Bank for financing. You further argue that if Council rezones the large tract including the School District property as a conservation district and permits certain recreational uses, it does not confer any direct economic benefit on Integra Bank or Lorigan for the four proffered reasons below. First, the decision to rezone does not guarantee that the School District will sell or be able to sell the property to the developer. The School District must vote to sell the property which is independent of any zoning, decision. Any possible sale needs approval by the Court of Common Pleas after full public hearing. Any decision to involve the developer is at least two steps removed from the decision by Council. Second, if the property is successfully sold, an application for conditional use must be made and approved by the planning committee. The decision then would have to be submitted for a separate vote to Bethel Park Council. McTiernan, Robert L, Esquire, 94 -569 June 2, 1994 Page 3 Third, if the developer uses Integra Bank for financing, such action would not involve Lorigan's branch. Lorigan would not have any involvement in making any loans nor would she receive any credit compensation or advancement as result of the use of Integra Bank by the developer. Fourth, the developer would have to make a definite commitment to obtain financing through Integra Bank. Based upon the above arguments, you conclude that the utilization of Integra Bank is at least four steps removed from any decision of Council: as to the decision of the School District to sell the property; as to the decision of the Court to approve the sale; as to a decision to permit a special conditional use and as to a decision by the developer to use Integra Bank which would not directly benefit Lorigan or her branch. You conclude that any decision of Council on the zoning issue is further removed from any financial benefit, as in the Amato case, so that Lorigan should be permitted to vote. You argue that a ruling of ineligibility for Lorigan could impact on the ability of any local business person to serve on Council. Further, any time a decision is made by council to rezone property, which could lead to the sale of property to a third person who could become a customer or user of any local businesses services, would prevent any independent business person from voting on any zoning issue and effectively exclude an entire class of potential public officials. You seek a ruling that Lorigan may be permitted to vote on the zoning issues even if a particular developer expresses a definite intention to use the bank in which she is a branch manager. 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. §S407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Council Member of Bethel Park, Lorigan is a public official as that term is defined under the Ethics Law, and hence she is subject to the provisions of that law. Section 3(a) of the Ethics Law provides: McTiernan, Robert L, Esquire, ' =569 June 2, 1994 Page 4 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. "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 McTiernan, Robert L, Esquire, , 94.569 June 2, 1994 Page 5 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 applying the provision of Section 3(a) of the Ethics Law to the instant matter, Amato, Opinion 89 -002 sets forth the principle that a public official may not participate or vote on a matter, wherein a financial relationship exists or could reasonably and legitimately be anticipated to exist, between a developer and the business with which the public official is associated. Although you argue that the instant matter is more removed from the situation in the Amato case, given the need for the School District to sell the property, the need for the Court to give the requisite approval, the need for the grant of a special conditional use and the need by the developer to utilize Integra Bank, there is a fundamental difference between the facts in Amato and the instant matter. In Amato, after a project received a recommendation from the planning commission, it was necessary for the township to render approval after which the developer would hire a general contractor who would hire various subcontractors who in turn could contact the public official in his capacity as a sales manager for a building supply company. The Commission there noted that the McTiernan, Robert L, Esquire? .94-569 June 2, 1994 Page 6 voting for the development project would not result in any identifiable subcontractor who would be dealing with the official's company. In this case, you have stated that the developer has expressed an intention to utilize Integra Bank for financing. It is clear that Integra Bank is a business with which Lorigan is associated as per the statutory definition quoted above. Thus, although the principals in Amato applies, the facts and results in Amato are distinguishable from the instant case. Further, the fact that there are several intermediary steps before the finalization of the development plan is not necessarily operative on the question of whether a conflict exists. Thus, for example, it is possible for a development plan to be reasonably assured of approval even though there are numerous steps in the process whereas in another case a development plan could be reasonably assured of disapproval even if there were only one step in the process. Likewise, it is not relevant under the Ethics Law that the financing would not go to Lorigan's branch office of Integra. See AncTelini, Order 677 where the Commission found that a Mellon Bank Vice President violated Section 3(a) of the Ethics Law when she participated as a Councilmember in various matters concerning Mellon Bank and one of its branch offices. Section 3(a) of the Ethics Law merely requires a private pecuniary benefit, in this case the interest income from the financing, be obtained by the business with which associated. What is being asked in the instant matter is for a factual conclusion that Lorigan could not reasonably or legitimately anticipate from her vote on the rezoning issue that the developer would obtain financing from Integra Bank, a business with which Lorigan is associated. As noted above, in an advisory format, it is not a province to investigate the facts nor to make factual conclusions as to the state of mind of Lorigan regarding the circumstances of this case. Therefore, Lorigan would not be prohibited under Section 3(a) of the Ethics Act from voting on the proposed rezoning where the developer has expressed an intention to obtain financing from a bank with which Lorigan is associated provided that as a factual matter there would be no reasonable and legitimate anticipation by Lorigan of a financial relationship between the developer and the business with which she is associated relative to her voting on the zoning matter. 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 McTiernan, Robert L, Esquire, 94 -569 June 2, 1994 Page 7 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 respective municipal code. Conclusion: As Council Member for Bethel Park, Judith A. Lorigan, is a public official subject to the provisions of the Ethics Law. Lorigan would not be prohibited under Section 3(a) of the Ethics Act from voting on the proposed rezoning where the developer has expressed an intention to obtain financing from a bank with which Lorigan is associated provided that as a factual matter there would be no reasonable and legitimate anticipation by Lorigan of a financial relationship between the developer and the business with which she is associated relative to her voting on the zoning matter. 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. 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). Failure to file such an appeal at the Commission within fifteen (15) days may result in the dismissal of the appeal. erely, Vincent J . opko Chief Counsel