HomeMy WebLinkAbout98-586 MundorffGretchen A. Mundorff, Esquire
Watson Mundorff & Brooks
110 S. Arch St.
Connellsville, PA 15425 -3516
Dear Ms. Mundorff:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
August 6, 1998
98 -586
Re: Conflict; Public Official /Employee; Township; Supervisor; Landlord; Mobile Home
Park; Zoning Request.
This responds to your letters of June 11, July 10 and July 24, 1998 by which
you requested advice from the State Ethics Commission on behalf of James Stoots.
issue: Whether the Public Official and Employee Ethics Law presents any
prohibition or restrictions upon a township supervisor with regard to a zoning request,
where the applicant property owner is the landlord of the township supervisor.
Facts: As the Solicitor for Connellsville Township, you request an advisory from
the State Ethics Commission on behalf of James Stoots ( "Stoots "), a Connellsville
Township Supervisor.
Stoots resides in a mobile home park owned by Ray Cossell ( "Cossell "). Cossell
is a Connellsville Township resident.
Cossell filed an Application for a Change of Zoning within Connellsville
Township ( "Township "). Specifically, Cossell requested that property which is
presently zoned R -2 (Residential) and M -1 (Light Industrial) be re -zoned M -2 (Heavy
Industrial) for use for warehousing. A public hearing was held on February 18, 1998
regarding the said application. During the meeting, resident(s) questioned whether
Stoots would have a conflict of interest in the matter, based upon the fact that Stoots
resides in Cossell's mobile home park. You have submitted a copy of a portion of the
transcript from that meeting. It is noted that the Township Board of Supervisors is a
three - member Board, that one of the other supervisors has already received an Advice
of Counsel as to his involvement in this matter (See, Adams, Advice of Counsel, No.
98 -577), and that the third supervisor has recused herself from the decision - making
process in connection with Cossell's Application for a Change of Zoning, although not
necessarily for reasons encompassed by the Ethics Law (See, Transcript at 48).
Stoots has confirmed that he does in fact reside in Cossell's mobile home park.
However, Stoots has stated that he does not believe the fact that he resides in
Cossell's mobile home park would in any way impede his ability to render a fair and
equitable decision on Cossell's Application for re- zoning. You state that you asked
Stoots if Cossell ever indicated to him (Stoots) that Stoots' continued lease of the
property was dependent upon the way that he voted on Cossell's Application, and
FAX : (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: sec@state.pa.us
Mundorff, 98 -586
August 6, 1998
Page 2
Stoots answered "no." You asked Stoots if he believed that his continued residence
depends in any way upon how he votes on Cossell's Application, and Stoots indicated
that he did not feel threatened at all about losing his residence in Cossell's mobile
home park. You state that you asked Stoots if Cossell or anyone had given him
(Stoots) any money or promised to give him any money or thing of value in connection
with the decision that he would render in the matter, and he stated that such had not
occurred. Finally, you asked Stoots if he knew of any reason as to why he could not
hear the facts as presented at the hearing and render a fair decision, to which he
answered "no."
Based upon the above, you ask whether Stoots would have a conflict of interest
with regard to Cossell's Application for a Change of Zoning. You state that Stoots has
agreed to be bound by the decision of the State Ethics Commission on this issue.
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), (1'1). An advisory only
affords a defense to the extent the requestor has truthfully disclosed all of the material
facts.
As a Township Supervisor for Connellsville Township, James Stoots ( "Stoots ")
is a public official as that term is defined in the Public Official and Employee Ethics
Law ( "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:
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
Mundorff, 98 -586
August 6, 1998
Page 3
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(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 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 instant matter,
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.
Mundorff, 98 -586
August 6, 1998
Page 4
Pursuant to Section 3(a) of the Ethics Law, Stoots would have a conflict of
interest as to Raymond Cossell's aforesaid Application for a Change of Zoning. This
conclusion is based upon the State Ethics Commission's rulings in Bassi, Opinion No.
86- 007 -R, and Woodrina, Opinion No. 90 -001.
In Bassi, Opinion No. 86- 007 -R, the State Ethics Commission held, inter alia,
that a County Commissioner (Edward Paluso) could not enter into a lease with a
municipal authority, where one of the members of the authority (Norman Carson) was
a county employee directly responsible to the commissioners of the county, unless the
execution of the lease was accomplished after an open and public process, with the
authority member abstaining from participating in the review and award of said lease,
and the county commissioner abstaining from participating in any matter relating to the
authority member in his position as a county employee. The Commission stated, alia:
... we cannot ignore the fact that Mr. Carson is an authority member
and has influence and control over authority decisions. In this respect,
Mr. Carson, by voting on the final adoption of a lease, would be voting
on a matter directly related to his employer. Even though that employer
is another governmental body, we have held, in the past, that a public
official may not vote or participate in a matter if it somehow relates to a
financial interest which he may have. See, Welz, 86 -001. In the instant
situation, Mr. Carson would be called upon to determine the advisability
of renting property for the authority. The property which they are seeking
to rent is owned by the individual or one of the individuals who currently
supervises him and controls his public employment with the county. As
a result of this, Mr. Carson, as an authority member, should abstain from
participating in any matter relating to this particular lease.
See, Bassi 86 -007 at 3. The Commission further stated:
Mr. Paluso as a county commissioner, is, in part, responsible for the
general supervision of Mr. Carson. Mr. Carson, on the other hand, is an
authority member in a position to grant Mr. Paluso a lease which results
in Mr. Paluso receiving a financial gain. It may be difficult for the public
to perceive how Mr. Paluso's actions as a county official, would not
somehow be influenced by this potential leasing arrangement. It may be
argued that Mr. Paluso, in dealing with Mr. Carson, to date, has done so
in order to effect the favorable outcome of this lease. Additionally, it
could be argued that Mr. Carson voted in favor of the lease in order to
advance his position as a full -time county employee. The above factual
scenarios, while hypothetical in nature, nonetheless create the types of
conflicts of interest that are to be addressed by this Commission.
td, at 4.
In Woodring, Opinion No. 90 -001, the State Ethics Commission reviewed a
similar situation. Jesse Woodring, Chairman of the Sunbury Redevelopment Authority,
had applied to the City for a rehabilitation grant through the Federal Rental
Rehabilitation Program (hereinafter, the "Program "). Kenneth Pick, who was employed
as the Executive Director of the Redevelopment Authority (chaired by Woodring) also
served as the Community Development Coordinator for Sunbury. In the latter capacity,
Pick was administrator in charge of the Program for the City. Pick's functions included
administering the Program, reviewing all applications, and determining eligibility. The
Commission stated:
Mundorff, 98 -586
August 6, 1998
Page 5
. . . we are concerned that Mr. Pick, who is an employee of the
Redevelopment Authority of which you are Chairman, has the duty of
reviewing all applications and determining eligibility in his capacity as
Community Development Coordinator for the city. In particular, the
potential exists, given the employer - employee relationship between the
Redevelopment Authority and Mr. Pick, that your application might be
reviewed in a more favorable Tight than other applications. To forestall
such a situation, you must not participate or take any action as to Mr.
Pick if your application is approved and you receive benefits. Bassi,
Opinion 86 -007.
In addition, Section 3(j) of the Ethics Law would require you to
publicly note that you would have a conflict as to any matter involving
Mr. Pick. In addition, you must file a written memorandum to that effect
with the person responsible for recording the minutes.
Woodrinq, Opinion No. 90 -001 at 6.
As was the case in the Bassi and Woodrinq rulings discussed above, the facts
which you have submitted reflect that in his public position, Stoots would exercise
authority over Cossell's zoning request. In his private capacity, Cossell is Stoots'
landlord and exercises authority over him with regard to his rental of the property upon
which he resides. Therefore, for the reasons enunciated in Bassi and Woodrinq, supra,
Stoots would have a conflict of interest pursuant to Section 3(a) of the Ethics Law in
matters pertaining to Cossell's aforesaid request for new zoning.
In each instance of a conflict of interest, Stoots would be required to abstain
from participation and to fully satisfy the disclosure requirements of Section 3(j) as set
forth above. However, where two of the three Supervisors would have a conflict of
interest under the Ethics Law, such that the "majority or other legally required vote of
approval" would be "unattainable," one of the exceptions in Section 3(j) would apply
and would allow Stoots to vote despite his conflict conditioned upon his first
abstaining and making the requisite disclosures.
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 Township Supervisor for Connellsville Township, James
Stoots ( "Stoots ") is a public official subject to the provisions of the Ethics Law. Given
the submitted facts that in his private capacity, Raymond Cossell is Stoots' landlord,
and based upon the State Ethics Commission rulings in Bassi, Opinion No. 86 -007 -R
and Woodrino, Opinion No. 90 -001, Stoots would have a conflict of interest pursuant
to Section 3(a) of the Ethics Law in matters pertaining to Cossell's Application for a
Change of Zoning. In each instance of a conflict of interest, Stoots would be required
to abstain from participation and to fully satisfy the disclosure requirements of Section
3(j) as set forth above. However, where two of the three Supervisors would have a
conflict of interest under the Ethics Law, such that the "majority or other legally
required vote of approval" would be "unattainable," one of the exceptions in Section
3(j) would apply and would allow Stoots to vote despite his conflict conditioned upon
his first abstaining and making the requisite disclosures. Lastly, the propriety of the
proposed conduct has only been addressed under the Ethics Law.
Mundorff, 98 -586
August 6, 1998
Page 6
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 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 result in the dismissal of the appeal.
cerely,
Vincent J. Dopko
Chief Counsel