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HomeMy WebLinkAbout20-501 GallagherPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL January 27, 2020 To the Requester: Mr. Sean M. Gallagher, Esquire Murrin, Taylor & Gallagher Dear Mr. Gallagher: FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov 20-501 This responds to your letter dated December 3, 2019, and your email received December 13, 2019, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"). Issue: Whether, ursuant to Section 1103(a) of the Public Official and Employee E�Tics Act ("Ethics Act"), 65 Pa.C.S. § 1103(a), an attorney with a law firm that serves as the solicitor for a township zoning hearing board on a retainer basis would have a conflict of interest with regard to providing legal representation to the township zoning hearing board in relation to a request by the developer of a mixed -use development for a variance from the requirements of the township zoning ordinance, where: (1) the developer seeks a variance for the dimensions of a sign that would be located at the entrance to the mixed -use development; and (2) the attorney and his wife have an agreement to purchase a lot in the mixed -use development from a builder that will construct a townhouse on the lot. Facts: You request an advisory from the Commission based upon the following s`ul5m fted facts. You are an attorney with the law firm of Murrin, Taylor & Gallagher (the "Law Firm"). The Law Firm serves as the Solicitor for the Zoning Hearing Board of Middlesex Township (`Township"), Butler County, Pennsylvania. The Law Firm is retained by the Township Zoning Hearing Board and bills hourly for its services. The developer (the "Developer") of a mixed -use development (the "Development") in the Township has requested a variance (the "Variance") from the requirements of the Township Zoning -Ordinance. The Developer seeks the Variance for the dimensions of a sign that would be located at the entrance to the Development. You and your wife have an agreement to purchase a lot in the Development from a builder that will construct a townhouse on the lot. Closing on the sale of the lot will occur in May 2020 after the townhouse is built. Based upon the above submitted facts, you ask whether you would have a conflict of interest with regard to providing legal representation to the Township Zoning Hearing Board in relation to the Variance. G_allla homer, 20-501 January 27, 2020 Page 2 Discussion: It is initial) noted that pursuant to Sections 1107(10) and 1107(11) of e Ethics —Act, 65 Pa.C.S. y§§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. § 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all of the material facts. In responding to your inquiry, the threshold question to be addressed is whether, in the capacity as the Solicitor for the Township Zoning Hearing Board, the Law Firm would be considered a "public official" subject to the Ethics Act. (It is parenthetically noted that in the aforesaid capacity, the Law Firm would not be considered a "public employee" subject to the Ethics Act because the Law Firm is not an individual. See, 65 Pa.C.S. § 1102, definition of "public employee"; Myers, Opinion 96-004). In 1997 and 1999, the status of Solicitors under the Ethics Act was clarified by certain rulings of the Commonwealth Court of Pennsylvania and the Supreme Court of Pennsylvania. In P.J.S. v. State Ethics Commission, 697 A.2d 286 (Pa. Cmwlth. 1997), the Commonwealth ourt of Pennsylvania el d, inter alia, that the conflict of interest provisions of the Ethics Act do apply to solicitors wFo are public employees and are not just retained by their client municipalities. The Supreme Court of Pennsylvania subsequently affirmed the Commonwealth Court's decision in the P.J.S. case. P.J.S. v. State Ethics Commission, 555 Pa. 149, 723 A.2d 174 (1999). However, in C.P.C. v. State Ethics Commission, 698 A.2d 155 (Pa. Cmwlth. 1997), alloc. den., 550 Pa, 686, 704 A.2d 640 997 , ased upon an analysis of prior precedents, th-e--Commonwealth Court of Pennsylvania determined that a municipal Solicitor who is retained by --as opposed to being an employee of --the municipality is not a "public official o public employee" as those terms are defined in the Ethics Act and therefore is not subject to the conflict of interest provisions of the Ethics Act. In the instant matter, based upon the submitted facts, you are advised that in the capacity as the Solicitor for the Township Zoning Hearing Board, the Law Firm is not a "public official" subject to the Ethics Act, and therefore, neither the Law Firm nor you as an individual attorney in the Law Firm would be subject to the restrictions of Section 1103(a) of the Ethics Act (pertaining to conflict of interest). In response to your specific question, you are advised that Section 11030) of the Ethics Act —which does not apply to you —would not prohibit you from providing legal representation to the Township Zoning Hearing Board in relation to the Variance. It is parenthetically noted that Section 1103(b) of the Ethics Act applies to everyone. For your information, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer or give to a public official/public employee anything of monetary value and no public official/public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public officiallpublic 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. Additionally, all Solicitors are required to file Statements of Financial Interests Esuant to the Eth cs Act. 65 Pa.C.S. § 1104(a); Foster, Opinion 98-002; see also, .S., su rara (intent of amendment to Section 404, now Section 1104, of the Ethics Act was to include solicitors who are not employees of the governmental units they serve within the scope of the Ethics Act's financial disclosure provisions). 0-501 Ga11�7222020 anuary , Page 3 Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the Second Class Township Code or the Rules of Professional Conduct. Conclusion: Based upon the submitted facts that: (1 you are an attorney with the law firm of Murrin, Taylor & Gallagher (the "Law Firm"); �2) the Law Firm serves as the Solicitor for the Zoning Hearing Board of Middlesex Township ("Township"), Butler County, Pennsylvania; (3) the Law Firm is retained by the Township Zoning Hearing Board and bills hourly for its services; (4) the developer (the "Developer") ofa mixed - use development (the "Development") in the Township has requested a variance (the "Variance") from the requirements of the Township Zoning Ordinance; (5) the Developer seeks the Variance for the dimensions of a sign that would be located at the entrance to the Development; (6) you and your wife have an agreement to purchase a lot in the Development from a builder that will construct a townhouse on the lot; and (7) closing on the sale of the lot will occur in May 2020 after the townhouse is built, you are advised as follows. Per rulings of the Pennsylvania appellate courts, in the capacity as the Solicitor for the Township Zoning Hearing Board, the Law Firm is not a "public official" subject to the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et sec and therefore, neither the Law Firm nor you as an individual attorney in the Law Firm would be subject to the restrictions of Section 1 103(a) of the Ethics Act (pertaining to conflict of interest). Section 1103(a) of the Ethics Act would not prohibit you from providing legal representation to the Township Zoning Hearing Boardinrelation to the Variance. Section 1103(b) of the Ethics Act applies to everyone, and all Solicitors are required to file Statements of Financial Interests pursuant to the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, an 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, provided the requester 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 such. 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 writingg and must be actually received at the Commission within thirty(30) days of the date of this Advice pursuant to 51 Pa. Code § if3.2(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 thirty (30) days may result in the dismissal of the appeal. Sincerely, �e�- M.'- Robin M. Hittie Chief Counsel