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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