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HomeMy WebLinkAbout97-639 YatronPaul M. Yatron, Esquire Mogel, Speidel, Bobb & Kershner 520 Walnut Street PO Box 8581 Reading, PA 19603 -8581 Dear Mr. Yatron: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 31, 1997 97 -639 Re: Conflict, Public Official /Employee, Township, Supervisor, Lawsuit, Court Order, Liability, Vote, Private Pecuniary Benefit. This responds to your letters of November 5, 1997 and November 25, 1997 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employe Ethics Law presents any prohibition or restrictions upon Township Supervisors with regard to taking official action pursuant to an Order of Court, where those Supervisors are Defendants in the related legal action, in both their official and individual capacities. Facts: You represent the Supervisors of Union Township, Berks County, Pennsylvania, and have been authorized to request an advisory from this Commission on their behalf. The Township has been the Defendant in a series of legal actions brought by Haines and Kibblehouse regarding whether the Township's zoning would allow the establishment of a quarry. These legal actions resulted in an Order from the Berks County Court of Common Pleas which required the Township to permit this use. To carry out the Court Order, official actions would be required by the very Supervisors named — in both their official and individual capacities — as Defendants in the related lawsuit(s). Some activities have already taken place, and since those activities would be considered "past conduct," you acknowledge that such may not be addressed in the context of this advisory from the State Ethics Commission. However, in 1998, the Board will be called upon to again vote to approve the preliminary and final plans for Haines and Kibblehouse, the Plaintiff in the lawsuit(s). Yatron, 97 -639 December 31, 1997 Page 2 You state that questions have been raised both by the Supervisors and by the citizens of the Township as to whether the affirmative votes of the Supervisors to carry out those actions would be a violation of the Public Official and Employe Ethics Law ( "Ethics Law ") since the Supervisors' favorable votes would tend to shield them from liability to Haines and Kibblehouse, thus potentially resulting in a private pecuniary benefit to them in their individual capacities. In a letter dated October 3, 1997 (a copy of which you have submitted), your firm advised the Supervisors that there was no conflict of interest based upon the facts which were presented to you and in light of your own analysis of the Act. The Supervisors have directed you to seek an advisory from the State Ethics Commission as to the propriety of their actions. 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. It is further initially noted that pursuant to Sections 7(10) and (11) of the Ethics Law, an opinion /advice may be given only as to prospective (future) conduct. if the activity in question has already occurred, the Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Law violations by a person who is subject to the Ethics Law. Finally, it is noted that this advisory only addresses the conduct of those Supervisors who have specifically given you their permission to submit your inquiry on their behalf. As to all other individuals, you are considered a third party without legal standing. As Supervisors for Union Township, the individuals who have given you permission to inquire on their behalf as to their own, future conduct are public officials subject to the Public Official and Employe Ethics Law ( "Ethics 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: Yatron, 97 -639 December 31, 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. 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 has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. Yatron, 97 -639 December 31, 1997 Page 4 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 provisions of the Ethics Law to the circumstances which you have submitted, a conflict of interest arises under Section 3(a) of the Ethics Law, where a public official /public employee uses 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. In this case, under the facts which you have submitted, future official actions taken by the Supervisors on whose behalf you have submitted your inquiry would satisfy the element of "use of authority of office." With regard to the element of "private pecuniary benefit," it would appear under the facts which you have submitted that the avoidance of personal liability would be a pecuniary benefit. However, a pecuniary benefit which is authorized in is not a "private" pecuniary benefit. Conversely, a pecuniary benefit which is not authorized in law is a "private" pecuniary benefit. Wagner, Order No. 1028 at 12. To the extent these Supervisors would avoid personal liability by obeying a direct Order of Court, such would constitute a pecuniary benefit, but it would not constitute a "private" pecuniary benefit because it would be authorized in law. Under such circumstances, a conflict of interest would not exist under the Ethics Law. 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 Supervisors for Union Township, those individuals who have given you permission to seek this advisory from the State Ethics Commission on their behalf are public officials subject to the provisions of the Ethics Law. To the extent that the future actions in which these Supervisors would engage would be performed in direct obedience to a direct Order of Court, and would result in the avoidance of personal liability, a conflict of interest would not exist under the Ethics Law because the financial benefit received would be authorized in law` and not a "private" pecuniary benefit. 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 Yatron, 97 -639 December 31, 1997 Page 5 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. cerely, Vincent ,i.JDopWo Chief Counsel