Loading...
HomeMy WebLinkAbout99-562 FisherEd Fisher 5838 Brizes Lane Elizabeth, PA 15037 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL June 29, 1999 99 -562 Re: Conflict; Public Official /Employee; Township Supervisor; Business with which Associated; Employer; Property Owner; Commercial Lease; Tenant; Property Assessment Appeal; Settlement Proposal; Immediate Family; Land Development Application; Three - Member Board; Removal Action; Absentee Member. Dear Mr. Fisher: This responds to your letter of May 25, 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 gii mg., presents any prohibition or restrictions upon a township supervisor under the following factual scenarios where the board of supervisors is a three - member board and one of the other supervisors is subject to a removal action and has not been attending meetings: (1) There is a settlement proposal before the Township for a property assessment appeal for commercial property owned by the supervisor's employer, but the property is subject to a lease that requires the tenant to pay the real estate taxes; and (2) the supervisor's brother has submitted a land development application which has been recommended by the planning commission. Facts: As a Member of the three - Member Board of Supervisors for Forward Township, you seek an advisory from the State Ethics Commission as to the following factual scenarios. First, your employer owns commercial property which is the subject of a property assessment appeal. The appeal has been brought by the tenant which leases the property from your employer and which, according to the terms of the lease, is responsible for paying all real estate taxes. The lease terminates on July 31, 2009, but is subject to four renewals of five years each, at the option of the tenant. The tenant has made a settlement proposal to the Township which would increase the assessment, but not by as much as the Board's decision. The Board of Supervisors has not voted on the proposal. You ask whether it would be a conflict of interest for you to vote in favor of the settlement of the property assessment appeal, and if so, whether §1 103(j) of the Ethics Act would nevertheless permit you to vote given that one of the other Supervisors is subject to a removal action and is not attending meetings of the Board. You ask at what point, if any, the other Supervisor's failure to attend meetings would permit him to vote. FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us Fisher, 99 -562 June 29, 1999 Page 2 The second factual scenario that you pose pertains to your brother, who submitted a land development application to the Township Planning Commission before you took office. The Planning Commission has affirmatively recommended the land development application to the Board of Supervisors. You ask whether §1103(j) of the Ethics Act would permit you to vote as to your brother's land development application given that the aforesaid Supervisor who is subject to a removal action is not attending meetings. You ask at what point, if any, would that other Supervisor's failure to attend meetings permit you to vote. 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 Township Supervisor for Forward 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 1 103. Restricted activities. 65 Pa.C.S. §1103(a). (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Act as follows: Section 1 102. 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 Fisher, 99 -562 June 29, 1999 Page 3 65 Pa.C.S. §1102. 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. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. In addition, Sections 1 103(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 1 103(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 Fisher, 99 -562 June 29, 1999 Page 4 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 applying the above provisions of the Ethics Act to the instant matter, pursuant to Section 1103(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. Although the facts which you have submitted do not specifically identify your employer, given the broad definition of "business" in the Ethics Act, it may be concluded that your employer is a business with which you are associated. As the owner of the commercial property in question, your employer would be financially impacted by the assessment for that particular property, even though the tenant is responsible for paying the real estate taxes during the term of the lease. The settlement proposal before the Township would result in a lower assessment than that set by the Board and it would therefore financially benefit your employer as the property owner. Thus, in your capacity as a Township Supervisor, you would have a conflict of interest as to the settlement proposal for the appeal from the assessment for your employer's property. Likewise, you would have conflict of interest as to your brother's land development application. Your brother is a member of your "immediate family" as that term is defined by the Ethics Act. The Board's action as to the land development application would financially impact your brother, and therefore you would have a conflict of interest in that matter. In each instance of a conflict, you would be required to abstain and to publicly disclose the abstention and reasons for same, both orally at the appropriate public meeting(s) and by filing written memorandum(s) to that effect with the person recording the minutes. As for the absence of one of the other Supervisors who is subject to a removal action, you are advised as follows. The Ethics Act delineates very precise and limited circumstances under which a public official with a conflict may vote despite that conflict. Such exceptions are to be narrowly construed. Under either of the two factual scenarios which you have submitted and for which you would have a conflict of interest, Section 1 103(j) by its own terms would allow you to vote to break a tie vote (deadlock) between the other two Supervisors conditioned upon the assumption that you would otherwise abstain from any involvement in the matters and would satisfy the disclosure requirements. Additionally, the State Ethics Commission has held that in the situation where a member of a three - member board has a conflict and one of the other members refuses to second a motion to bring it to a vote or is absent, the member with the conflict may second the motion. Garner, Opinion No. 93 -004. However, the Commission has not taken any further step to allow a supervisor with a conflict to vote despite his conflict Fisher, 99 -562 June 29, 1999 Page 5 where another member of the board is absent and there is no actual deadlock. Absent such a ruling by the Commission, this Advice must necessarily conclude that the mere absence of the other member of the Board of Supervisors would not enable you to circumvent the express requirements of the voting conflict exception in Section 1103(j), which by its own terms requires that there be a deadlock between the remaining two supervisors before the supervisor with a conflict may vote. 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 Township Supervisor for Forward Township, you are a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 mi. Your employer is a business with which you are associated. In your capacity as a Township Supervisor, you would have a conflict of interest as to a settlement proposal for an appeal from the property assessment for property owned by your employer. Your brother is a member of your immediate family. In your capacity as a Township Supervisor, you would have conflict of interest as to your brother's land development application. In each instance of a conflict, you would be required to abstain and to publicly disclose the abstention and reasons for same, both orally at the appropriate public meeting(s) and by filing written memorandum(s) to that effect with the person recording the minutes. Where you would have a conflict of interest, Section 1 103(j) by its own terms would allow you to vote to break a tie vote (deadlock) between the other two Supervisors conditioned upon the assumption that you would otherwise abstain from any involvement in the matters and would satisfy the disclosure requirements. As for voting, the mere absence of the other Member of the Board of Supervisors would not enable you to circumvent the express requirements of the voting conflict exception in Section 1103(j), which by its own terms requires that there be a deadlock between the remaining two supervisors before the supervisor with a conflict may vote. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1 107(1 1), 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 I. 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 Fisher, 99 -562 June 29, 1999 Page 6 Commission within thirty (30) days may result in the dismissal of the appeal. erely, Vincent J. opko Chief Counsel