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HomeMy WebLinkAbout99-503 ConfidentialSTATE 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 January 25, 1999 99 -503 Re: Conflict; Public Official /Employee; Township Supervisor; Real Estate; Development; OR Zone; Lawsuit. This responds to your letters of December 16 and December 29, 1998 by which you requested confidential advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq., presents any prohibition or restrictions upon a township supervisor with regard to a certain "OR" district (permitting office development) or particular properties zoned "OR" that adjoin or are in the vicinity of the development in which the supervisor resides, where the supervisor and her spouse have sued the developer alleging misrepresentation of their property as zoned residential, when it is instead OR, and where the township has been joined as an additional defendant in that litigation. Facts: In your public capacity, you serve as a Supervisor in Township A ( "Township "), County B, Pennsylvania. In your private capacity, you and your husband have sued a developer alleging misrepresentation as to the zoning classification of a certain property which you own. You have submitted copies of various pleadings which have been filed in the lawsuit, including the original Complaint and the Complaint by which the Defendants joined additional Defendants including the Township. The Sales Agreement by which you purchased your property is attached as an exhibit to the original Complaint. Included among the exhibits to the Defendants' Complaint are an Answer and New Matter to your Complaint and the recorded final plan for the subdivision which includes your property. All of the submitted documents are incorporated herein by reference. It is noted that the Sales Agreement, dated March 12, 1989, indicated that your property was zoned residential. Similarly, the final plan for the subdivision which includes your property indicated that the zoning classification was "R -2." Your Complaint alleges that the Defendants represented that the property which you purchased was zoned residential, and that the representatives of the Defendants also represented that the land adjoining the development was likewise zoned residential (Complaint, paragraphs 5 -6). The Complaint further alleges that at all times unbeknownst to you and your spouse, until approximately December of 1995, your property, the development in which your property is located, and the adjoining properties were in fact zoned OR (Complaint, paragraph 7). It is alleged that after December 1995, the Township began expressing an interest in developing the OR FAX : (717) 787 -0806 ® Web Site: www.ethics.state.pa.us • e -mail: sec @state.pa.us Confidential, 99 -503 January 25, 1999 Page 2 district, and that plans have been brought before the Township for the development of substantial office complexes within the OR district, as well as additional roads to serve said district. Your Complaint seeks damages for the alleged depreciation of the value of your property from what it would have been had it in fact been zoned residential, together with costs and interest. The Complaint filed by the original Defendants, by which the additional Defendants including the Township were joined, alleges that from the date of the recording of the final plan for the subdivision in which you reside (July 27, 1987) through and including July 23, 1996, the Township represented the zoning classification of the property to be R -2. The Complaint further alleges that in zoning permits and certificates of occupancy, the Township has also represented such to be the zoning classification of the single - family homes within the subdivision. The original Defendants have alleged that they relied upon the representations of the Township regarding the zoning classification of your property. Their Complaint contends that, to the extent you have incurred any damages, the additional Defendants are either solely liable, are liable over by way of indemnification, or are jointly and severally liable on your cause of action. Having submitted the above, you note that there are several large tracts of property which adjoin or are in the vicinity of the development in which you live and which are zoned OR. As a Supervisor, you have supported what you term the "pro- active policy" of the purchase of open space and development rights throughout the Township including areas within the OR district which are presently farmland. You have also opposed the condemnation of certain properties adjacent to the OR district intended to facilitate a four -lane highway to service the OR district. As for the future, you note that there has been public comment, but nothing firm, regarding the possibility of rezoning some or all of the property within the OR district. You state that issues have been raised as to whether, in your capacity as a Township Supervisor, you would have a conflict of interest with regard to matters involving the OR zone because such could or might impact upon the value of your home. You seek an advisory from the State Ethics Commission as to your prospective involvement in issues concerning the OR district or particular properties zoned OR. Discussion: It is initially noted that pursuant to Sections 1107(10) and (1 1) of the Public Official and Employee Ethics Act ( "Ethics Act "), Act 93 of 1998, Chapter 11, 65 Pa.C.S. §§1107(10), (1 1), 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 Pa.C.S. §§1107(10), (1 1). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. Pursuant to Sections 1107(10) and (11) of the Ethics Act, 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 Act violations by a person who is subject to the Ethics Act. Confidential, 99 -503 January 25, 1999 Page 3 As a Supervisor for Township A, you are a public official as that term is defined in the Ethics Act, and hence you are subject to the provisions of that Act. Section 1 103(a) of the Ethics Act provides: Section 1 103. Restricted activities. (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. §1103(a). The following terms are defined in the Ethics Act as follows: Section 1102. 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. The term 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. 65 Pa.C.S. §1102. Section 1 103(j) of the Ethics Act provides as follows: Section 1 103. Restricted activities. (j) Voting conflict. - -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 Confidential, 99 -503 January 25, 1999 Page 4 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. 65 Pa.C.S. §1103(j). In each instance of a conflict, Section 1103(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 Act, 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 Act to the instant matter, pursuant to Section 1 103(a) of the Ethics Act, 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. Generally, matters before a township board of supervisors that would financially impact a supervisor, a member of his immediate family, or a business with which he or a member of his immediate family is associated with regard to the value of real estate or related litigation, would present a conflict of interest for that supervisor. However, there are certain exclusions to the statutory definition of "conflict" or "conflict of interest" which, depending upon the facts in a given case, may apply. There is an exclusion which applies where the economic impact of an action is de minimis. There is also a "class /subclass" exclusion which applies to: ". . . an action. . . 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." 65 Pa.C.S. §1102. In reviewing these exclusions in the context of the issuance of advisories, the Commission has stated: For an appropriate disposition of these types of cases involving conflict issues with proffered de minimis or class /subclass exclusions, it is imperative that the requestor Confidential, 99 -503 January 25, 1999 Page 5 of an advisory submit sufficient facts for the Commission to determine whether there is a pecuniary benefit and the amount, and if so, whether the conflict is de minimis or affects to the same degree a class /subclass. Laser, Opinion No. 93 -002 at 5. In this case, the facts which have been submitted simply fail to meet the burden which you, as the requestor, bear. The facts which you have submitted, though specific as to the lawsuit, are very general as to the nature of any future issues involving the OR district and their financial impact upon you /your spouse or others. The submitted facts do not allow for a conclusive determination as to whether any private pecuniary benefit would result from issues involving the OR district or particular properties zoned OR, such that the elements for a conflict of interest would be met. Furthermore, even if it would be assumed that such elements would be met, the facts which have been submitted do not enable a determination as to whether the class /subclass exclusion set forth above would apply. The fact that your home is in a development suggests that the possibility exists for the class /subclass exclusion to apply, but in the absence of facts as to the specific financial impact upon you and your spouse as compared to the other prospective members of the class /subclass, with regard to particular matters coming before the Board, a conclusive determination cannot be made. The requirement for such specificity results from the statutory exclusion itself. In order for the exclusion to apply, one must be affected to the same degree as the other members of the class /subclass. In Laser, Opinion No. 93 -002, the Commission was given far more factual detail than you have provided. Yet, in the absence of appraisals, the impact upon the value of the property in question was speculative, and based upon the factual insufficiency, the Commission did not (and could not) reach a conclusion as to whether a conflict existed. Similarly, based upon the insufficient facts which have been submitted in this case, a conclusion cannot be reached as to whether a conflict would exist for you. This Advice is necessarily limited to providing the general parameters of the Ethics Act as set forth above. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the Second Class Township Code. Conclusion: As a Supervisor for Township A ( "Township "), in County B, you are a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 seg. Based upon the insufficiency of the facts which you have submitted, a conclusion cannot be reached as to the question which you have posed, specifically, whether the Ethics Act presents any prohibition or restrictions upon you, as a Township Supervisor, with regard to a certain "OR" district (permitting office development) or particular properties zoned "OR" that adjoin or are in the vicinity of the development in which you reside, where you and your spouse have sued the developer alleging misrepresentation of your property as zoned residential, when it is instead OR, and where the Township has been joined as an additional Defendant in that litigation. This Advice is necessarily limited to providing the general parameters of the Ethics Act as set forth above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Confidential, 99 -503 January 25, 1999 Page 6 Pursuant to Section 1107(11), an 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, provided 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. Sinc ly, 1 Vincent J. Dopk Chief Counsel