HomeMy WebLinkAbout95-619 HernandezSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
November 29, 1995
Ileana Hernandez, Township Supervisor
R.R. 2
PO Box 362
Dingmans Ferry, PA 18328
Dear Ms Hernandez:
No. 95 -619
Re: Conflict, Public Official /Employee, Supervisor, Second Class
Township, Rental homes, Ordinance, Residential Community,
Effect on Supervisor's development.
This responds to your letter of October 26, 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 second class
township supervisor from participating or voting on a proposed
ordinance which would restrict home rentals in areas zoned
residential when a supervisor lives in such an area.
Facts: You are a member of the Pike County, Delaware Township Board
of Supervisors which has a pending ordinance that would restrict
the rental of homes in any area zoned residential. Specifically,
the ordinance would provide that no person or entity may rent more
than one home in a residentially zoned area.
Within Delaware Township, there are at least two potential
projects which involve the construction of a large number of rental
homes in a residentially zoned area. One of the potential projects
would be located in Marcell Lake Community Association.
Marcell Lake Community is a private community restricted to
single homes. The Township has many of these private communities
which are zoned residential.
Hernandez, No. 95 -619
November 29, 1995
Page 2
The Pike County Builders Association, which is opposed to the
proposed ordinance, questions the propriety of your possible
participation in the Township's consideration of the ordinance
because the proposed ordinance directly effects the Marcell Lake
Community where you live.
You ask whether the Ethics Law precludes your participation
and voting in the consideration of an ordinance before the Delaware
Township Board of Supervisors.
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
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 Supervisor for Delaware Township, you are a public official
as that term is defined under the Ethics Law, and hence you 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
Hernandez, No. 95 -619
November 29, 1995
Page 3
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.
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
permitted to vote if disclosures are made as
otherwise provided herein. In the case of a
three - member governing body of a political
Hernandez, No. 95 -619
November 29, 1995
Page 4
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 Section 3(a) of the Ethics Law to the submitted
facts, we must determine whether you would have a conflict in
participating or voting on the proposed ordinance which would
restrict the rental of homes in the Township. The definition of
"conflict" quoted above has exclusions, one of which involves
actions which affect to the same degree a subclass consisting of a
group which includes the public official. In this case, the
subclass would be all homeowners who live in the Township in areas
zoned residential. You would be a member of that subclass because
you live in the Marcell Lake Community which is zoned residential.
Accordingly, you would not have a conflict and could participate
and vote as to the proposed ordinance provided that you, as a
member of the subclass, are affected to the same degree as the
other members of the subclass. The question of whether you are
affected to the same degree is a factual question which cannot be
addressed in an advisory. Laser, Opinion 93 -002.
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 Delaware Township, you are a public
official subject to the provisions of the Ethics Law. Section 3(a)
of the Ethics Law would not prohibit a second class township
supervisor from participating or voting on a proposed ordinance
which would restrict home rentals in areas zoned residential when
a supervisor lives in such an area provided the Supervisor is a
member of a subclass consisting of home owners in areas zoned
residential and is affected to the same degree as the other members
of the subclass. 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
Hernandez, No. 95 -619
November 29, 1995
Page 5
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 thirty (30)
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 thirty (30) days
may result in the dismissal of the appeal.
cerely,
\
.
Dopko
Vincent p
Chief Counsel