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Home My WebLink About95-544 KemperWilliam D. Kemper, Esquire Attorney at Law 209 Diamond Street West Butler, PA 16001 -5712 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 30, 1995 95 -544 Re: Conflict, Public Official /Employee, Second Class Township Code, Supervisor, Religious Affiliation; Religious Affiliated Retirement Development. Dear Mr. Kemper: This responds to your letters of February 17 and March 6, 1995 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 township supervisor when a religiously affiliated business seeks approval of a real estate use from the board of supervisors and this supervisor is affiliated with the same religious faith as the business. Facts: Mr. John W. Norling (Norling) is a Supervisor for the Township of Center, Butler County, and is of the Lutheran faith. Lutheran Affiliated Services seeks approval from the Board of Supervisors for a conditional use of real estate so that it can develop the land into retirement townhouses and a senior citizen complex. Norling has indicated that he has no personal interest in the land or proposed development. However, he also indicates that it could be possible he would retire and end up living in the retirement complex in the future. He seeks advice from the Commission under the Ethics Law concerning his participation in the approval process of the proposed conditional use. He specifically asks whether a conflict of interest exists requiring him to abstain from the approval process. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. § §407(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 Kemper, William D., Esquire, 95 -544 March 30, 1995 Page 2 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 a Supervisor for the Township of Center, Norling 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. (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. "Immediate family." A parent, spouse, Kemper, William D., Esquire, 95 -544 March 30, 1995 Page 3 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. "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 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 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 Kemper, William D., Esquire, 95-544 March 30, 1995 Page 4 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 above provisions of the Ethics Law to the questions posed, the Ethics Law would not prohibit Norling from participating in the approval process of a conditional real estate use sought by Lutheran Affiliated Services based upon the submitted facts, to wit, that neither Norling, nor a member of his immediate family nor any business with which he or a member of his immediate family is associated would receive a private pecuniary benefit. Regarding the possibility of Norling living at the development following his retirement, there is an exclusion as to the definition of conflict in the Ethics Law. As to the definition of conflict of interest as quoted above, the term "'Conflict of interest' does not include an action . . . which affects to the same degree a class consisting of the general public or a subclass consisting of [a] . . . group which includes the public official . a member of his immediate family or a business with which he or a member of his immediate family is associated." Provided Norling is affected to the same degree as those in the general public or those of a subclass regarding retirees who would be eligible to reside at the retirement development, there would be no conflict of interest under the Ethics Law based upon the above statutory exclusion. 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 respective municipal code. Conclusion: As Supervisor for the Township of Center, Norling is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not prohibit the township supervisor from participating in the approval process of a Kemper, William D., Esquire, 95 -544 March 30, 1995 Page 5 retirement development complex subject to the qualifications as noted above. 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 513.2(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. cerely, c>y Vincent J. Dopko Chief Counsel