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HomeMy WebLinkAbout96-541 GrahamDonald P. Graham, Esquire Dillon, McCandless, King, Coulter & Graham, LLP Cranberry Professional Park 501 Smith Drive Suite 3 Cranberry Township, PA 16066 Re: Conflict, Public Official /Employee, Township Supervisor, Immediate Family, Brother, Rails to Trails Project, Litigation. Dear Mr. Graham: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 16, 1996 96 -541 This responds to your letter of March 13, 1996 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 as to his participation in matters involving a township "Rails to Trails" project where the supervisor's brother is a party to litigation filed by property owners against the township. Facts: As the Solicitor for Jefferson Township in Butler County, Pennsylvania, you have been authorized by James Jones, a Jefferson Township Supervisor, to request an advisory from the State Ethics Commission on his behalf. Jefferson Township is a second class township and is governed by a three member board. Mr. Jones took office in January, 1996. Prior to January, 1996, Jefferson Township, in conjunction with two adjoining municipalities, Buffalo Township and Winfield Township, acquired certain properties which had formerly been used as a railroad line from Consolidated Rail. This rail line was converted to a hiking and biking trail by the Township with funds from ISTEA. During the construction of the trail, several adjoining property owners objected to its construction and questioned the legality of the construction. Three separate lawsuits have been filed as a result of the "rails to trails" project. The first suit involves a group of approximately 38 property owners who claim that they hold reversionary rights to the real property and are entitled to possession Graham /Jones, 96 -541 April 16, 1996 Page 2 as a result of Conrail's abandonment of the railroad. That suit is currently pending in the Butler County Court of Common Pleas. The second law suit was filed by a smaller group of the 38 property owners who filed the first suit. The second suit seeks equitable relief to stop use of the right of way. The aforesaid first and second lawsuits have been consolidated by the Butler County Court of Common Pleas. The third law suit was filed by Summit Township, an adjoining municipality, seeking to block usage of the portion of the trail which is in Summit Township pending compliance with certain municipal regulations. You state that all three suits involve similar challenges regarding the rights of Jefferson Township and its partners to convert the rail line to a hiking and biking trail. Carl Jones, who is the brother of James Jones, is a plaintiff in both of the lawsuits which have been filed by property owners. It is anticipated that during the course of the litigation, the Board will be required to vote on the handling of the litigation, payment of expenses, settlement proposals, and litigation strategy. You state that an initial review of the Ethics Law indicates that this situation would present a conflict of interest for James Jones. However, quoting the definition of "conflict of interest," and specifically noting the class /subclass exception, which is set forth in that definition, you state that you believe that James Jones would not have a conflict because his brother, Carl Jones, would be part of a class or subclass which is affected equally by the litigation, i.e., property owners owning reversionary rights You state that you would "envision" that any settlement proposals in this litigation would be made to the class of plaintiffs as opposed to individual plaintiffs. You further advise that the group of 38 property owners /plaintiffs has requested class certification to include all persons similarly situated. You pose two specific inquiries. First, based upon all of the above, you ask whether it would be a conflict of interest for Mr. Jones to vote on matters involving the aforesaid pending litigation. Your second inquiry involves that portion of Section 3(j) of the Ethics Law which pertains to 3- member boards and voting in the event of a deadlock. Since the Jefferson Township Board of Supervisors is a 3- member Board, you ask whether, pursuant to Section 3(j), in the event that Mr. Jones would have a conflict of interest as to the litigation, he could nevertheless vote to break a tie. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(1 1) 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. Graham /Jones, 96 -541 April 16, 1996 Page 3 As a Township Supervisor for Jefferson Township, James Jones 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, child, brother or sister. 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 Graham /Jones, 96 -541 April 16, 1996 Page 4 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 the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Law, then in that event participation is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. In applying the above provisions of the Ethics Law to the circumstances which you have submitted, pursuant to Section 3(a) of the Ethics Law, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Carl Jones, as James Jones' brother, is a member of his immediate family. As you have noted, preliminarily, the elements for a conflict of interest could be made out by the facts which you have submitted, but you ask whether the class /subclass exception to the definition of "conflict" or "conflict of interest" (65 P.S. §402) would not in fact be applicable: "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. 65 P.S. §402. (Emphasis added). Certainly, based upon the facts which you have submitted, there is a group of numerous plaintiff property owners who could be affected by any or all of the three Graham /Jones, 96 -541 April 16, 1996 Page 5 pending lawsuits and who potentially could be viewed as a class /subclass for purposes of the Ethics Law. The question as to whether the class /subclass exception would apply in any given instance would hinge upon a factual determination as to whether the proposed action would affect the class /subclass to the same degree. If factually the class /subclass would be affected to the same degree, the exception would apply and the given action in question would not be a conflict of interest. On the other hand, if the class /subclass would not be affected to the same degree by the contemplated action, such action would not be within the class /subclass exception and there would be a conflict of interest. In each instance of a conflict of interest, James Jones would be required to abstain fully from participation and he would also be required to fully satisfy the disclosure requirements of Section 3(j) as set forth above. As for your second specific inquiry, if James Jones would have a conflict of interest as to any particular action, conditioned upon his first fully abstaining and satisfying the disclosure requirements of Section 3(j), James Jones could vote to break a deadlock of the other two members. 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 Second Class Township Code. Conclusion: As a Township Supervisor for Jefferson Township in Butler County, Pennsylvania, James Jones is a public official subject to the provisions of the Ethics Law. Carl Jones, as James Jones' brother, is a member of James Jones' immediate family. Pursuant to Section 3(a), James Jones could not use the authority of his public position as a Township Supervisor or confidential information obtained by being in that position for a private pecuniary benefit for himself, a member of his immediate family such as his brother, Carl Jones, or a business with which James Jones or a member of his immediate family is associated. James Jones would have a conflict of interest in matters pertaining to certain "Rails to Trails" litigation to which his brother is a party except where the proposed action would affect to the same degree a class /subclass including the brother. In each instance of a conflict of interest, James Jones would be required to abstain fully and to fully satisfy the disclosure requirements of Section 3(j) as set forth above. In any given instance of a conflict of interest, if he would first fully abstain and satisfy the disclosure requirements of Section 3(j), James Jones could thereafter cast a vote to break a deadlock of the remaining two members of the 3- member Board. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(1 1), 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. 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. Graham /Jones, 96 -541 April 16, 1996 Page 6 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, incept . Dop o Chief Counsel