HomeMy WebLinkAbout96-586 GreenwoodAllan B. Greenwood, Esquire
Cremers, Morris & Greenwood
1220 Valley Forge Road
Suite 6
PO Box 598
Phoenixville, PA 19460
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
August 30, 1996
96 -586
Re: Conflict, Public Official /Employee, Township, Board of Supervisors, Chairman,
Application for Zoning Amendment, Application for Conditional Use, Hamilton
Tract, Unified Development Area, Lease, Farm.
Dear Mr. Greenwood:
This responds to your letters of July 25, 1996 and August 2, 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 the Chairman of a Board of Supervisors as to
applications for a zoning amendment and conditional use for a 307 acre tract of land
which he currently rents, and upon which he resides with his family, subleases three
other dwelling units and conducts farming operations.
Facts: As the Solicitor for West Vincent Township in Chester County,
Pennsylvania, you request an advisory on behalf of Kenneth Miller, Jr., Chairman of
the Township Board of Supervisors.
There is presently pending before the Board of Supervisors an Application for
a Zoning Amendment and, concurrently, an Application for a Conditional Use, which
conditional use would be possible if the Zoning Amendment is adopted.
The applications pertain to a 307 acre tract of land known as the "Hamilton
Tract" which is located near the intersection of Routes 401 and 100 in the western
part of the Township.
The Zoning Change Application would create an overlay district known as a
Unified Development Area. You state that this application would affect the entire
Township although the Zoning Map would be changed only as to the Hamilton Tract
itself. If the zoning change is adopted, any other property owner in the Township
Greenwood /Miller, 96 -586
August 30, 1996
Page 2
could seek a Zoning Map change for his or her or its parcel. The Conditional Use
Application is restricted in its scope to the Hamilton Tract itself.
You state that a question has arisen as to whether Kenneth Miller, Jr. (Miller)
would have a conflict of interest which would necessitate his recusal from participation
in matters to the Hamilton Tract. You list the following relevant facts:
1. Miller is the Chairman of the Board of Supervisors and has been for several
years. He is a dairy farmer, and he and his family presently rent the Hamilton
Tract and the four dwelling units located thereon. Miller and his family live in
one of the residential units and sublease the other three dwelling units.
Approximately 125 acres of the Hamilton Tract's 307 acres is tillable land.
2. Part of the Hamilton Tract consisting of about 158 acres was owned by Miller
and his father from approximately 1976 to 1986. Miller's parents never lived
on the Hamilton Tract nor did Miller and his parents as a family, although you
state that Miller did live in a cottage on the tract for a few years while he was
in his twenties before he married.
3. The lease has been in existence since 1986 and is on a month -to -month basis
with either the landlord or tenant able to terminate the lease upon thirty days
written notice to the other.
4. The tillable portion of the Hamilton Tract consists of approximately 125 acres
and is part of Miller's overall farming operation and is used to grow crops for
the dairy operation. Part of Miller's dairy herd is from time to time placed on
the tract to keep the meadows under control.
5. The 125 tillable acres of the Hamilton Tract covered by the Miller lease
comprise roughly 20% of the total acreage which is part of Miller's farm
operation. Miller's farm operation covers a total of 620 acres. The number of
acres which Miller must have under lease or direct fee simple ownership is
approximately 400 in order to support his dairy herd. The 220 excess acres is
to provide a "cushion" or "backup" in case some of the farmland being rented
is lost to him. You state that the loss of farmland is a normal facet of doing
business and is always an anticipated possibility.
6. You state that the essence of the Miller farm operation is a dairy herd consisting
of 224 cows. The barn and equipment essential to the dairy operation, as well
as the vast majority of the total herd, is not located on the Hamilton Tract;
rather, it is located on property on Horseshoe Trail in West Vincent Township
consisting of 54 acres of which Miller has a one -half interest, his uncle having
the other one -half interest. You state that there are presently negotiations
underway to allow Miller to acquire his uncle's one -half interest. It is expected
that these negotiations will come to fruition shortly and that within the next few
months there will be settlement.
You state that you have given Miller your opinion that the above fact situation
does not present a conflict of interest requiring his recusal from participating in and
voting on the Zoning Change Application and the Conditional Use Application and in
support of your conclusion, you proffer the following reasons:
Greenwood /Miller, 96 -586
August 30, 1996
Page 3
a. You state that the 125 tillable Hamilton acres are a relatively small percentage
of the total farmland under cultivation by Miller and an even smaller part of his
overall operation when it is taken into consideration that the heart and essence
of that operation is dairy farming. The barn and equipment, and in most cases,
the entire herd, is on property located elsewhere.
b. You state that the heart of the dairy operation is on a tract of ground located
on Horseshoe Trail in the township regarding which Miller has within the last
few years made a very sizable barn investment approaching $200,000. As
mentioned above, Miller has a one -half fee simple ownership in this land and is
about to acquire the other half fee simple interest if current negotiations bear
fruit.
c. The existing lease for the portion of the Hamilton Tract in question is terminable
upon thirty days notice by either side. There are a multiplicity of factors, known
and unknown, which might cause lease termination at any time.
d. Miller has expressed to you and to the other members of the Board of
Supervisors that he has reached a firm determination in his own mind that he
will soon be relocating his residence and will be off the property altogether at
some point in the probably very near future as a consequence of the recent
activity regarding the Hamilton Tract.
e. Miller has also expressed to you and to the other members of the Board of
Supervisors, as well as to Fronefield Crawford, Esquire, Special Zoning Counsel
to the Township in this matter, that he has no doubt that he can reach a fair
and impartial decision concerning both the Zoning Application and the
Conditional Use Application.
f. It is the intent of Miller to announce at the commencement of the zoning
proceedings before the Board his relationship as lessee of the Hamilton Tract,
to set forth the facts which are contained in your letter, and to express his
feeling that there is not a conflict of interest and that he can render a fair and
impartial decision. At that time, any person wishing to lodge a protest on the
conflict of interest question will be given an opportunity to do so.
West Vincent Township is still a highly rural township and you state that if
Miller has a conflict of interest in this zoning case, it is hard to imagine how any
zoning ordinance could be considered since in almost every case one or more
Supervisors would have a "conflict of interest."
h. You state that Miller's interest in the property is not a direct and particular and
immediate interest and his interest is not fundamentally distinguishable from the
interest of the general public.
This case has great significance within the Township and even beyond it. You
state that to disqualify one of the three Supervisors runs the risk that there will
be a one -to -one tie vote such that you perceive that there will be no decision
rendered or an automatic decision resulting from indecision itself which would
not be satisfactory to the applicant or to any protestants or to the general
populace and citizens of the Township.
g-
Greenwood /Miller, 96 -586
August 30, 1996
Page 4
j•
Miller is an experienced member of the Board, who is now and has been its
leader. You state that Miller's guidance and participation in the proceeding will
be important to a fair and impartial and effective hearing.
You further state that you have tried to fathom how Miller's interest might be
affected depending upon whether the Applications are approved or disapproved. If
approved, Miller will be required to leave the property and cease farm operations on
it. At the same time, portions of the Hamilton Tract would then be on the market for
sale to farmers or those who would keep the overall tract in open space. You state
that Miller is not a person of unlimited means and that he would not be able financially
to make a meaningful bid for outright fee simple purchase of any portion of the tract.
If the Applications are rejected, it is anticipated that there will be either an Application
for Use by Right which would result in an intensive development of the tract on which
Miller presently has a month -to -month leasehold interest or there would be a validity
challenge or Curative Amendment filed which would provide for an even greater and
more intense development of the Hamilton Tract. You state that either way, Miller
would be required to leave. He and his family are aware of this and Miller has
accepted it.
You contend that if it can be argued that there is a potential gain for Miller if the
application is denied and a potential gain if the application is approved, that these two
things would make his interest in the outcome so uncertain as to cancel one out with
the other. You state that if it is so difficult to ascertain whether an approval of the
application would help or hurt Miller's personal interest or whether a rejection would
help or hurt Miller, it cannot be said that his interest is so direct and immediate so as
to cause his disqualification.
You note your own views as to Miller's honesty, integrity, common sense and
judgment. You further state your belief that Miller's familiarity with the Hamilton Tract
would be an asset.
The hearings in this matter have been scheduled for August 29, 1996 and
September 11, 1996. You indicate that you found the case of Levitt and Sons. Inc.
v. Kane, 285 A.2d 917 (1972), to be helpful in your analysis.
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.
As Chairman of the Board of Supervisors for West Vincent Township, Chester
County, Kenneth Miller, Jr. (Miller) 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:
Greenwood /Miller, 96 -586
August 30, 1996
Page 5
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.
"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:
Greenwood /Miller, 96 -586
August 30, 1996
Page 6
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 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.
Based upon the facts which you have submitted, Miller generally would have a
conflict of interest in matters pertaining to the Hamilton Tract. The conflict in any
given instance could be based upon a private pecuniary benefit flowing to Miller,
member(s) of his immediate family, or his business, or alternatively, the conflict could
be based upon the lessor /lessee relationship which exists between the applicant /owner
Greenwood /Miller, 96 -586
August 30, 1996
Page 7
of the Hamilton Tract and Miller. See, Woodring, Opinion 90 -001; see also, Bassi,
Opinion 86- 007 -R.
The Application for a Conditional Use for the Hamilton Tract, and the Application
for a Zoning Amendment which will facilitate it, will clearly have a financial impact
upon the lessor and upon Miller, his immediate family, and his farming operations.
However, with regard to the Zoning Change Application, which will affect the entire
Township, the facts are insufficient to determine whether the class /subclass exception
to the definition of "conflict" or "conflict of interest" might apply. Thus, based upon
the facts which have been submitted, this Advice cannot conclusively determine
whether a conflict would exist as to that particular application. See, Laser, Opinion
93 -002.
With regard to the Conditional Use Application, there would be a clear conflict
of interest for Miller.
First, the said application is restricted in scope to the Hamilton Tract itself: thus,
the class /subclass exception would have no applicability. Furthermore, a basis for a
conflict as to the Conditional Use Application would exist no matter which way Miller
would vote.
If Miller would vote in favor of the application, he would be taking official action
in favor of the lessor who, on a monthly basis, is in a position to decide whether to
continue or to terminate Miller's lease (see, Woodrina, supra; Bassi, supra).
Furthermore, based upon the facts which you have submitted, portions of the Hamilton
Tract would go on the market for sale to farmers such as Miller. It could very well be
financially advantageous to Miller to own such portions of the land which he has been
leasing for ten years. Although you have proffered that Miller is "not a person of
unlimited means and simply would not have the wherewithal financially to make a
meaningful bid for outright fee simple purchase of any portion of the tract," (letter of
July 25, 1996 at 4), there would be the potential for financial arrangements other than
an "outright fee simple purchase" to be made.
If, on the other hand, Miller would vote against the application, the fact that the
owner would have to resort to other procedures could result in a significant delay of
any prospective termination of Miller's farming operations. If Miller truly is not in a
position to reach terms on any portion or portions of the Hamilton Tract, such a delay
could allow Miller time to find other land for his farming operation. Farming operations
are by their very nature timing- sensitive. The very denial of the application could "buy
time" which would result in a private pecuniary benefit through the continuation of
Miller's lease, even if only for a while.
The facts which you have submitted do not suggest any basis for your proposal
that the private pecuniary benefits resulting either way Miller votes cancel each other
out. Even if such a theory had any validity, factually there is no basis for concluding
that the respective private pecuniary benefits would be equivalent.
In each instance of a conflict of interest, Miller would be required to abstain
from participation and to fully satisfy the disclosure requirements of Section 3(j).
However, given that the Board is a three - member Board, pursuant to Section 3(j),
Miller would be able to vote to break a tie vote of the other two Supervisors, if he first
properly abstained and satisfied the disclosure requirements.
Greenwood /Miller, 96 -586
August 30, 1996
Page 8
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 Chairman of the Board of Supervisors for West Vincent
Township, Chester County, Kenneth Miller, Jr. (Miller) is a public official subject to the
provisions of the Ethics Law. Miller would have a conflict of interest in matters
pertaining to the "Hamilton Tract," a 307 acre tract of land on which he resides,
subleases dwellings, and conducts farming operations. Such matters which would
pose a conflict of interest would include the Application for a Conditional Use which
is presently before the Board, and could include (depending upon facts which have not
been submitted) the pending Application for a Zoning Amendment. In each instance
of a conflict of interest, Miller would be required to abstain from participation and to
fully satisfy the disclosure requirements of Section 3(j). If after Miller would abstain
and make the requisite disclosures, the other two Members of the Board would cast
opposing votes, Miller could vote to break the tie despite his conflict. 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.
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 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.
Sin Iy,
Vincent J. Dopko
Chief Counsel