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HomeMy WebLinkAbout99-548 BurkeMichael J. Burke RR2, Box 141 Newfoundland, PA 18445 Re: Conflict; Public Official /Employee; Supervisor; Sterling Township. Dear Mr. Burke: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1-800- 932 -0936 ADVICE OF COUNSEL May 12, 1999 99 -548 This responds to your letter dated April 6, 1999, received April 12, 1999, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 g# sea., presents any prohibition or restrictions upon a Township Supervisor as to a proposed ordinance that would regulate a local airport, the surrounding property, and any future airport/surrounding property, where, based upon the facts submitted, the element of a private pecuniary benefit is lacking. Facts: As an elected Township Supervisor for Sterling Township in Wayne County, Pennsylvania, you request an advisory from the State Ethics Commission. You state that Sterling Township is a small rural community of approximately 1000 residents. Sterling Township has one general store, two restaurants, a gas station and one public airport. You began your term in office in January of 1996. In 1995- -prior to your assuming office - -a company based in Connecticut bought the Airport Properties. Shortly thereafter, and still prior to your service on the Board of Supervisors, a representative of that company reminded the Board of Supervisors that the Township was not in compliance with certain Department of Transportation and Federal Aviation requirements. The airport representatives stated that all municipalities that have public airports and have a zoning ordinance in place must incorporate into their zoning ordinance a section dealing with airport zoning. Sterling Township at that time had a "stand alone ordinance" entitled "Spring Hill Airport Ordinance," adopted in 1983, which was not incorporated in the zoning requirements. Following discussion with the Township Solicitor, the Board of Supervisors —still in 1995 -- directed the Sterling Township Planning Commission to work with Sterling Township's Professional Planner, Carson Helfrich, to develop an ordinance amendment so as to be in compliance. This was a long process, and in September or October of 1998, the Planning Commission voted to send its proposal to the Board of Supervisors FAX : (717) 787 -0806 s Web Site: www.ethics.state.pa.us • e -mail: sec@state.ba.us Burke, 99 -548 May 12, 1999 Page 2 with a recommendation for approval. You note that you are not a member of the Planning Commission. Since that time, the Board of Supervisors has held the required public hearing and an informational session comparing the 1983 ordinance with the proposed ordinance. The Board has also agreed to hold a second public hearing. You state that an issue has been raised as to whether you should vote on the proposed ordinance, for the following reasons: 1. You received a 15 -20 minute sight- seeing airplane ride from an employee of the owners of the airport, which was prior to the Board of Supervisors being presented with the ordinance by the Planning Commission; 2. You were invited by an acquaintance to ice fish at a lake owned by the owners of the airport properties, and you accepted that invitation; 3. You have been on property owned by the airport owners. It is your opinion that you should be permitted to vote on the proposed ordinance. You note that the proposed ordinance not only regulates Spring Hill Airport and surrounding property but any future airport and surrounding property which may come to Sterling Township. You state that in many ways, the proposed ordinance is more restrictive to the airport than is the 1983 Ordinance. You have submitted a copy of the 1983 ordinance as well as the proposed ordinance, which submissions are incorporated herein by reference. You further state that there has never been any request from anyone associated with the airport that you should vote either in favor of or against the proposed ordinance. As for the three items enumerated above, you state the following. You state that when the present owners of the airport bought the property, an employee offered many local people sight- seeing rides in a small single- engine propeller airplane. it is your understanding that the offer was extended to more than thirty people. The airport did not charge for these rides. The airport is not in business to provide sight- seeing rides for a fee. You further state that the plane in which you flew is not based at Spring Hill Airport. You acknowledge that you did fish at a lake which is owned in part by the owners of the airport property. You state that you are an elementary school teacher, and were the guest of a fellow teacher who is a part time caretaker of the property, has permission to fish that lake, and also has guest privileges. You state that you spent approximately 9 hours fishing at the lake this past winter. You state that you have been on the airport property on several occasions, but that the airport property owners have opened their property for anyone to fish, walk, jog, use the tennis courts, etc. The property is also available for non - profit group use at no charge, as well as for private rentals. Burke, 99 -548 May 12, 1999 Page 3 Additionally, you have been on the property in your capacity as a Supervisor to inspect a building that was erected (two visits - during construction and post construction), and to obtain a copy of an impact study that the airport had done. You state that the local non - profit civic association, which holds official non- profit status and of which you are a member, has been granted permission to hold numerous events for the benefit of the adults and children of the community. You have attended certain of such events - -and the associated planning, preparation, and clean up - -as delineated in your letter. You state that the only event for which there was a charge to the public was a Celebration of Music Festival. This event earned a marginal profit for the Civic Association. The Civic Association has held workshop planning sessions on. Civic Association business at the Airport Properties and you have attended two such workshops. You have also been on the airport property for a Christmas Tree Cutting Event sponsored by a local radio club. You purchased a tree for 10 dollars from that local radio club. All profits of that tree sale benefitted the radio club. Based upon the above submitted facts, you ask whether the Ethics Act would prohibit you from participating as to the proposed ordinance. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§1107(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 Pa.C.S. §§1107(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Supervisor for Sterling Township, 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 1103. 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 Burke, 99 -548 May 12, 1999 Page 4 65 Pa.C.S. §1102. 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 1103(b) and 1103(c) of the Ethics Act 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 judgment 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 1103(j) of the Ethics Act provides as follows: Section 1103. 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 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). Burke, 99 -548 May 12, 1999 Page 5 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 facts which you have submitted, the Ethics Act would not prohibit you from participating as to the proposed ordinance, because the essential element of a private pecuniary benefit appears to be lacking. Moreover, you have submitted that there has never been any request from anyone associated with the airport that you should vote in favor of or against the proposed ordinance. Therefore, conditioned upon the assumptions that: (1) the element of a private pecuniary benefit is lacking; (2) that there are no other facts supporting a conflict of interest; and (3) that there are no improper understandings that would transgress Sections 1103(b) or (c) of the Ethics Act, the Ethics Act would not prohibit you from participating as to the proposed ordinance that would regulate the Spring Hill Airport, the surrounding property, and any future airport/surrounding property. 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 Sterling Township in Wayne County, Pennsylvania, you are a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 e am. Based upon the facts which have been submitted and conditioned upon the assumptions that: (1)the element of a private pecuniary benefit is lacking; (2) that there are no other facts supporting a basis for a conflict of interest; and (3) that there are no improper understandings that would transgress Sections 1103(b) or (c) of the Ethics Act, the Ethics Act would not prohibit you from participating as to the proposed ordinance that would regulate the Spring Hill Airport, the surrounding property, and any future airport/surrounding property. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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. Burke, 99 -548 May 12, 1999 Page 6 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. Si erely, Vincent J. Dopko Chief Counsel Geo