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HomeMy WebLinkAbout97-531 ThomasJames H. Thomas, Esquire Blakinger, Byler & Thomas, P.C. 28 Penn Square Lancaster, PA 17603 Dear Mr. Thomas: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 25, 1997 97 -531 Re: Conflict, Public Official /Employee, Township, Supervisor, Purchase of Land for Park in Township, Vote, Immediate Family, Father, Brother. This responds to your letter of January 23, 1997 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 regarding the Township's proposed purchase of land to be used as a park where the land primarily under consideration is owned by a general partnership in which the Supervisor's father and brother each have a 25% interest. Facts: You have been authorized by John N. Thomas, Jr. (Thomas) to request an advisory on his behalf. Thomas is one of five Supervisors for West Lampeter Township, Lancaster County. There is a proposal currently before the Board to purchase additional land for a park to be located within the Township. One of the prime properties under consideration for this acquisition is owned by Jemet Enterprises, a Pennsylvania general partnership. Jemet has four general partners, each with a 25% interest in the partnership. One of the partners is John N. Thomas, Sr., Thomas's father, and another partner is Marlin H. Thomas, Thomas's brother. The remaining two partners have no familial relationship with Thomas. You state that there has been much discussion at the Board's meetings regarding the possible purchase of the Jemet tract. The Township has obtained financial contribution commitments from Lancaster County and the Commonwealth of Pennsylvania which have contemplated the purchase of the Jemet tract, although you state that it is possible that the funds could be used for the purchase of another tract in the Township. Thomas /Thomas, 97 -531 February 25, 1997 Page 2 Because of his relationship to Marlin Thomas and John Thomas, Sr., Thomas has not participated in any of the debate at Board meetings concerning this proposal. He has, however, attended those meetings. Thomas's non - participation leaves a Board of four Members to make the decision on the purchase of the Jemet tract. The Board is equally divided with respect to purchase of the Jemet Tract (or any other tract), with two Members favoring purchase of the Jemet tract and two Members in opposition, with Thomas abstaining. Each time an action has been attempted, it has resulted in a deadlock. You ask whether, given the above facts, Thomas would be able to vote despite his conflict in order to break the deadlock of the remaining four members. You note that you have reviewed Section 3(j) of the Ethics Law, which provides that a board member with a conflict may vote to break a tie of a three - member board, and you have also reviewed Mlakar, Advice of Counsel No. 91- 523 -S. You contend that Thomas should be able to vote for the following reasons. First, you state that Section 3(j) was enacted in 1989 to allow "log jams" such as this one to be broken. You state that Section 3(j), which expressly deals with breaking 1 -1 ties, should be extended to apply to the instant situation in West Lampeter Township. Additionally, it is your belief that not allowing Thomas to vote would run contrary to the General Assembly's intention in the Second Class Township Code to have an odd number of supervisors so as to avoid a deadlock situation. You also reference the language in Section 401(b) of the Ethics Law as to "citizen officials who bring to their public office the knowledge and concerns of ordinary citizens and taxpayers," in support of your contention that Thomas, whose family is active in the community, should not be precluded from voting where the remaining Supervisors would end up in a deadlock. 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 a Supervisor for West Lampeter Township, Thomas 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: Thomas /Thomas, 97 -531 February 25, 1997 Page 3 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: 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 Thomas /Thomas, 97 -531 February 25, 1997 Page 4 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. Thomas's father and brother are both members of his immediate family as defined in the Ethics Law. Furthermore, Jemet Enterprises is a business with which these members of Thomas's immediate family are associated, based upon the submitted facts that each has a 25% interest in the partnership. Thus, it is clear that Thomas would tiave a conflict of interest in the matter of purchasing additional land for a park to be located within the Township, since this particular parcel owned by Jemet Enterprises is one of the prime properties under consideration. You do not appear to contest the fact that a conflict exists in this case. Rather, it is your contention that the Section 3(j) exception which permits voting despite a conflict to break a deadlock as to a three - member board should be extended to allow Thomas /Thomas, 97 -531 February 25, 1997 Page 5 Thomas to vote to break the deadlock on the five - member West Lampeter Township Board. Based upon a review of Section 3(j), the necessary conclusion is that your position is unsupported in the law, and that Section 3(j) would not allow Thomas to vote despite his conflict to break the deadlock in West Lampeter Township as to this land acquisition matter. Your arguments essentially advocate what you believe the law should he rather than what it j.. The General Assembly in enacting Section 3(j) was indeed mindful of the deadlocks that can result where conflicts of interest arise such that the necessary abstentions result in an even number of members remaining to make the decision. The General Assembly saw fit to create the exception for breaking deadlocks as to three - member boards only. Had it intended for the exception to extend to other boards, it would have so stated. As to five - member boards, Section 3(j) would only allow voting despite a conflict if enough members of the body had a conflict of interest under the Ethics Law requiring their abstention such that the majority or other legally required vote of approval would be unattainable. In this case, with four of the five members able to vote, the necessary vote is certainly attainable. Consequently, Thomas may not vote despite his conflict in order to break the deadlock of the remaining four members of the West Lampeter Township Board of Supervisors as to the proposed land acquisition for a park to be located within the Township. 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 Supervisor for West Lampeter Township, John N. Thomas, Jr. (Thomas) is a public official subject to the provisions of the Ethics Law. Thomas would have a conflict of interest as to the proposed acquisition by West Lampeter Township of additional land for a park to be located within the Township, where one of the prime properties under consideration is owned by Jemet Enterprises, a general partnership as to which two members of Thomas's immediate family each have a 25% interest. Thomas would not be permitted under Section 3(j) to vote despite his conflict to break a deadlock of the remaining four members. 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. Thomas/Thoma, 97 -531 February 25, 1997 Page 6 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 1. 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 resuft in the dismissal of the appeal. fl Sincerely, _,_,/ Vincent . Dopko Chief Counsel