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HomeMy WebLinkAbout97-632 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 12, 1997 97 -632 Re: Conflict, Public Official /Employee, Township Supervisors, Planning Commission, Developer. This responds to your letters of November 5, 1997; November 14, 1997; and a letter of September 11, 1997 from the Township A Board of Supervisors, by which you request confidential advice from the State Ethics Commission. Issue: Whether and to what extent the Members of a Township Planning Commission are restricted by the Public Official and Employe Ethics Law in matters involving the financial interests of themselves, their businesses /clients, or their extended family members. Facts: You represent Township A. You have been authorized by the Board of Supervisors to request an advisory from the State Ethics Commission as to certain members of Planning Commission B, who are appointed by the Board of Supervisors. The Planning Commission has 9 members. One such member is the Township Engineer, who also has an engineering /surveying business in the Township. He is the surveyor for many of the proposals that come before the Planning Commission. However, you state that he generally abstains as to his proposals. The Township Engineer's cousin is also a member of the Planning Commission. He is a local private contractor and does landscaping, sewage systems, road work, snow plowing and cindering in the Township. You ask: (1) whether he must abstain from projects presented by his cousin (the Township Engineer and fellow Planning Commission Member) to the Planning Commission; (2) whether he can vote on issues that come before the Planning Commission concerning a development or individuals within a development when he has an agreement with..the development to maintain the roads; and (3) whether he may vote on projects involving individuals with whom he has business arrangements. Finally, you pose questions about the Chairperson of the Planning Commission. The Chairperson is a developer in the area. You ask whether he should abstain on all Confidential Advice of Counsel, 97 -632 December 12, 1997 Page 2 decisions regarding his developments and projects. You further ask whether the Chairperson should abstain from voting and /or verbally expressing his opinion on proposed subdivisions for which his own attorney is providing legal representation. 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. The answers to all of your inquiries hinge upon whether these Members of Planning Commission B are "public officials" as that term is defined in the Public Official and Employe Ethics Law ( "Ethics Law "), and hence are subject to the provisions of that law. The term "public official" is defined in the Ethics Law as follows: Section 2. Definitions "Public official." Any person elected by the public or elected or appointed by a governmental body, or an appointed official in the Executive, Legislative or Judicial Branch of the State or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense, or to otherwise exercise the power of the State or any political subdivision thereof. 65 P.S. §402. The regulations of the State Ethics Commission similarly define the term "public official" and set forth the following additional criteria that are used to determine whether the advisory board exception applies: (i) The following criteria will be used to determine if the exception in this paragraph is applicable: (A) The body will be deemed to have the power to expend public funds if the body may commit funds or may otherwise make payment of moneys, enter into contracts, invest funds held in reserves, make loans or grants, borrow money, issue bonds, employ staff, purchase, lease, acquire or sell real or personal property without the consent or approval of the governing body and the effect of the power to expend public funds has a greater than de minimis economic impact on the interest of a person. Confidential Advice of Counsel, 97 -632 December 12, 1997 Page 3 (B) The body will be deemed to have the authority to otherwise exercise the power of the Commonwealth or a political subdivision if one of the following exists: (I) The body makes binding decisions or orders adjudicating substantive issues which are appealable to a body or person other than the governing authority. (II) The body exercises a basic power of government and performs essential governmental functions. (III) The governing authority is bound by statute or ordinance to accept and enforce the rulings of the body. (IV) The body may compel the governing authority to act in accordance with the body's decisions or restrain the governing authority from acting contrary to the body's decisions. (V) The body makes independent decisions which are effective without approval of the governing authority. (VI) The body may adopt, amend and repeal resolutions, rules, regulations or ordinances. (VII) The body has the power of eminent domain or condemnation. (VIII) The enabling legislation of the body indicates that the body is established for exercising public powers of the Commonwealth or a political subdivision. (ii) The term does not include judges and inspectors of elections, notary publics and political party officers. (iii) The term generally includes persons in the following offices: (A) Incumbents of offices filled by nomination of the Governor and confirmation of the Senate. (B) Heads of executive, legislative and independent agencies, boards and commissions. (C) Members of agencies, boards and commissions appointed by the General Assembly or its officers. (D) Persons appointed to positions - designated as officers by the Commonwealth or its political subdivisions. (E) Members of municipal, industrial development, housing, parking and similar authorities. Confidential Advice of Counsel, 97 -632 December 12, 1997 Page 4 (F) Members of zoning hearing boards and similar quasi - judicial bodies. (G) Members of the public bodies meeting the criteria in paragraph (i)(A). 51 Pa. Code §11.1. Status as a "public official" subject to the Ethics Law is determined by applying the above definition and criteria to the position held. In most instances, Township Planning Commission Members are not within the definition of "public official" as set forth above. Most such Planning Commissions are purely advisory and their Members fall within the statutory exception to the definition. Consequently, if Planning Commission B is like most Township Planning Commissions, its Members are within the statutory exception to the definition of "public official" and are not subject to the conflict of interest restrictions of the Ethics Law. Based upon the facts which you have submitted, it is impossible to determine with certainty whether Planning Commission B Members would in fact fall within the exception. Therefore, this Advice shall set forth the restrictions that would apply if the Members of Planning Commission B would not fit within the statutory exception. 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 employe, 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 Confidential Advice of Counsel, 97 -632 December 12, 1997 Page 5 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." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "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. Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /public employee anything of monetary value and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgement • of the public official /public 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 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 Confidential Advice of Counsel, 97 -632 December 12, 1997 Page 6 has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. In each instance of a conflict, 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 voting is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. In applying the above restrictions to the specific factual scenarios and inquiries which you have posed, 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. Even if it is assumed that the Members of Planning Commission B are subject to the conflict of interest provisions of the Ethics Law, the Member who is the Township Engineer's cousin would not have a conflict of interest as to matters submitted by the Township Engineer. The reason is that a "cousin" is not a member of immediate family as defined in the Ethics Law. However, this particular Member would have a conflict of interest as to his own business clients, see Miller, Opinion No. 89 -024; Kannebecker, Opinion No. 92 -010, including developments for which he maintains the roads. As for private individuals who reside within such a development with which this individual has an agreement, a conflict of interest would only exist if such individuals were themselves his business clients, or were otherwise in a position to affect him financially, such as in his business transactions with the development. See, Bassi, Opinion No. 86- 007 -R; Woodrinq, Opinion No. 90 -001. As for the Chairperson, again if we assume that he is subject to the conflict of interest provisions of the Ethics Law, he would have a conflict of interest in matters involving his own developments and projects and would be required to abstain and to satisfy the disclosure requirements of Section 3(j) on matters involving same. Snyder, Order No. 979 -2, aff'd, Snyder v. State Ethics Commission, 686 A.2d 843 (Pa. Cmwlth. 1996). However, absent some basis for a conflict of interest under Section 3(a) or an improper understanding under Section 3(b) /3(c), the Chairperson would not be restricted by the Ethics Law as to other subdivisions. The mere fact that his attorney would serve as the legal representative for some other subdivision, in and of itself, would fail to meet the elements of Sections 3(a), 3(b), and /or 3(c). For the Ethics Law to apply, there would have to be some sort of financial benefit /arrangement that would fit within the elements of Sections 3(a), 3(b), or 3(c). 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. Confidential Advice of Counsel, 97 -632 December 12, 1997 Page 7 Conclusion: Most Township Planning Commission Members fall within the exception to the definition of "public official" set forth in the Public Official and Employe Ethics Law ( "Ethics Law "), and therefore are not subject to the conflict of interest provisions of the Ethics Law. Based upon the facts which have been submitted, it cannot be determined with certainty whether Planning Commission B Members are within the statutory exception. If the said Members are "public officials" subject to the Ethics Law, their conduct must comport with the restrictions of the Ethics Law as set forth above. 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. c e incerely, 140 Vincent J. Dopko Chief Counsel