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HomeMy WebLinkAbout98-549 KaminSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 21, 1998 Samuel P. Kamin, Esquire Goldberg & Kamin 1806 Frick Bldg., 437 Grant St. 98-549 Pittsburgh, PA 15219 -6101 Re: Conflict; Public Official /Employee; Chairman; Planning Commission; Developers; Township Position; Planning Director; Consultant; Employment; Fee; Payment from Developers; Section 3(e). Dear Mr. Kamin: This responds to your letter of February 25, March 17 and Attorney Robert J. Garvin's letter of March 20,1998 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 the chairman of the planning commission in a first class township from being appointed to a township position where he would consult with developers who choose an expedited pre- conference option on proposed plans /developments where his compensation would be paid from an account funded by fees paid from those developers. Facts: As Solicitor for the First -Class Township of Robinson Township (Township), Allegheny County, you request an advisory from the State Ethics Commission on behalf of Richard Urbano (Urbano), Chairman of the Township Planning Commission. In accordance with the requirements of the Pennsylvania Municipalities Code (MPC), 53 P.S. §10101, a Planning Commission (Commission) has been created by the Township. Pursuant to Section 205 of the MPC, 53 P.S. § 10205, the Commission currently consists of five members, all of whom are citizen members and not officers or employees of the Township. The MPC permits a Commission to have at least three citizen members while the other two members may be officers or employees of the Township. The members of the Commission may not and do not receive compensation for their service, although occasionally they may be reimbursed for expenses incurred as a result of Commission duties. The Commission acts solely as a recommending body, with the Robinson Township Commissioners having the final right of approval as to subdivision and /or other land use development plans. In light of the significant commercial development within the Township over the past three years which is expected to continue, Township officials have been requested to meet with developers to review proposed developments. Due to Urbano's continued active involvement in meeting with developers and providing them with assistance and Kamin, 98 -549 April 21, 1998 Page 2 guidance, without compensation, the Township Commissioners desire to appoint him to an official Township position, the purpose of which will be to meet with and assist developers through the Township's development process. Urbano would be appointed either to the vacant position of Planning Director or a new position created by Ordinance. The proposed position would be a consulting position wherein Urbano would not be considered an official employee of the Township, but would be designated as a consultant. He would be paid $35 per hour for consulting time, without payroll deductions, and the Township would issue to Urbano a 1099 form for any consulting fees paid to him. The Township intends to amend its Subdivision and Site Plan Ordinance to allow a developer to proceed through the formal planning application, presentation, review and recommendation process or an expedited pre- conference option. The latter option is intended to expedite the planning /development process whereby Urbano, in his proposed position, would meet with developers at a "pre- conference" along with the Commission counsel, the Township Engineer and the Building Inspector /Zoning Officer to review a Planning Application in an effort to expedite the planning process and establish the required course of action and procedural requirements for the Township under the MPC. The developers, in choosing to proceed through the pre- conference procedure, would be required to make an advance payment to reimburse the Township for any and all anticipated direct engineering, legal as well as consulting fees. Payment to Urbano would be made directly, from the segregated fund established by the developers' deposits, which fund would be separate and apart from all other Township funds and would contain deposits made by developers desiring to utilize the expedited pre- conference option. You ask whether it would be a violation of the Ethics Law for Urbano to remain a member and Chairman of the Township Planning Commission and to vote on planning issues while serving in the consulting position. Your concern is not with the MPC but with Urbano functioning in the above (Township) position. 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. As Chairman of the Planning Commission (Commission) or Township Planning Director /Consultant for Robinson Township, Allegheny County, Urbano may be a public official /employee as that term is defined in the Public Official and Employe Ethics Law ( "Ethics Law "), so as to be 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. Kamin, 98 -549 April 21, 1998 Page 3 "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. 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. Restricted activities (e)(1) No person shall solicit or accept a severance payment or anything of monetary value contingent upon the assumption or acceptance of public office or employment. (2) This subsection shall not prohibit: (i) Payments received pursuant to an employment agreement in existence prior to the time a person becomes a candidate or is notified by a member of a transition team, a search committee or a person with appointive power that he is under consideration for public office or makes application for public employment. (ii) Receipt of a salary, fees, severance payment or proceeds resulting from the sale of a person's interest in a corporation, professional corporation, partnership or other entity resulting from termination or withdrawal therefrom upon the assumption or acceptance of public office or employment. (3) Payments made or received pursuant to paragraph (2)(i) and (ii) shall not be based on the agreement, written or Kamin, 98 -549 April 21, 1998 Page 4 otherwise, that the vote or official action of the prospective public official or employee would be influenced thereby. (4) This subsection shall not be applied retroactively. 65 P.S. §403(e). 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. 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 reviewing the Ethics Law, the first question to be considered is whether Urbano is a public official /employee as Chairman of the Commission or as Township Planning Director /Consultant. Both the Ethics Law and Regulations exclude from the definition of "public official" the members of advisory boards that have no authority to expend public funds, other than the reimbursement for personal expenses. You have stated that the Commission acts solely as a recommending body. Assuming factually that the Commission is an advisory body that has no authority to expend public funds other than the reimbursement for personal expenses as defined in the Ethics Law, then Urbano as Chairman or as a Commission Member would not be a public official and hence would not be subject to the restrictions of Section 3 of the Ethics Law, other than Sections 3(b) and 3(c), which apply to all persons. Kamin, 98 -549 April 21, 1998 Page 5 As to Urbano's position with the Township, Urbano would be the appointed Planning Director or "consultant" for the expedited pre- conferences selected by developers who would pay fees into a fund which would compensate Urbano at $35 per hour. The question is whether that position for Urbano would be one of public office /employment. Unfortunately, the facts do not resolve this issue. In this regard, in your letter of February 20, 1998, you characterize the Commissioners as appointing Urbano "to an official Township position..." that would be "the existing vacant position of Planning Director or a new position to be created by Ordinance." In Garvin's letter of March 20, 1998, he characterizes Urbano as "not being] an official employee of the Township, but... a consultant." As a further factual complication, Garvin states that Urbano would receive a 1099 form from the Township. Section 3(e) of the Ethics Law prohibits a person from accepting a severance or anything of monetary value contingent upon the assumption or acceptance of public office, or employment. Urbano is seeking to accept the position based upon compensation of $35 per hour from an account funded by fees paid by the developers. Hence, it appears that his acceptance is contingent upon his compensation being paid by the developers from an account funded by fees paid by them. However, the prohibition of Section 3(e) requires that the contingency relates to the acceptance of public office /employment. See, Minor, Opinion No. 90 -016. If Urbano would not be appointed to public office or hold a position of public employment Section 3(e) would not have application to him. Urbano's position as Township Planning Director /Consultant, and derivatively any prohibitions under the Ethics Law turn upon factual issues. If it is factually assumed that Urbano would be a public official /employee of the Township, Section 3(e) of the Ethics Law would prohibit him from taking such position. If it is assumed that Urbano would be an independent consultant and not an appointed official or public employee of the Township, then Section 3(e) of the Ethics Law would not prohibit him from accepting such a position. Such factual issues cannot be resolved without a full investigation as to Urbano's status with the Township. Even if it is assumed factually that Urbano is an independent consultant for the Township and not a public official /employee, it is suggested that Urbano refrain from taking the position because his compensation would be paid from an account which is funded by fees paid by developers who Urbano would be assisting in expediting their proposed plans /developments. Urbano would be receiving compensation from developers for the purpose of facilitating their plans through an expedited process while acting as "consultant for the Township" and Chairman of the Commission. As Commission Chairman and Township "consultant," Urbano's duty is to the public interest which is paramount. Crisci, Opinion No. 89 -013. The Preamble of the Ethics Law provides that public office is a public trust and that any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust. Therefore, although it is not suggested that Urbano would be engaged in any wrongdoing, the better practice for Urbano would be to refrain from taking the Township position where his compensation is paid from an account funded by fees paid by the developers. 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 codes. Conclusion: As Chairman of the Planning. Commission (Commission) for Robinson Township (Township), Allegheny County, and as a Township Planning i.pi, 98 -549 April 21, 1998 Page 6 be a public official/employee ody as defined in provisions of the Ethic Richard Urbano may purely advisory public official provisions L the Ethics Law. If the g Commission s on C Chair public not official/employee in the the Ethics Law, Urbano as mingi that Urbano is not p ic of him from receiving Township, the Ethics Law. Assuming paid not prohibit who choose a pre - Township, Section 3(e) of the Ethics Laf es would not compensation from expedite pe account plans/developments fn by Section 3(e) of the Ethics Law ion to expedite nshithe Township. However, if Urbano ubl c conference o p t to ee of the Township would be a public official /emp i y such position. Even if Urbano is not a p would prohibit him from taking suggested that the better practice for him wouldl/emoloecli under the Ethics Law, it is ow developers whom he would assist such a position with the Township because his compensation would be wou from to decline fees paid by the of the proposed would sassist in expediting plans/developments in the Township. paid from an account funded by Lastly, the propriety in conduct has only been addressed under the Ethics Law. enforcement complete defense in any other civil o o Pursuant to Section 7(11), this Advice is a comp all the initiated by the Commission, and evidence o goodi faith conduct t in la any proceeding proceeding, providing the q or criminal p \ om be lained of in reliance on the Advice given. material facts and committed the acts c available as such. This letter is a public record and made reason to challenge same, you disagree with this Advice or if you have any ersonal Finally, e, Y ou may appeal the Advice to the and a formal Op in will appapearance before the Commission will be scheduled be issued by the Commission. must be in writing and must be �d ICe pursuant at the Any such appeal m hand I may be received at the Commission (by hand Commission within thirty r3 ea dad y °f the date of this sin PelCode §13.2(h d St • The app service, or by FAX trap (30) days delivery, United States mail, delivery file such an appeal at the Commission within thirty 0806). Failure to may result in the dismissal of the appeal. cerely, incept J opko Chief Counsel