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HomeMy WebLinkAbout99-611 FreeMarilyn Free 12310 Rt. 99 Edinboro, PA 1 641 2 -1 01 8 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL September 27, 1999 Re: Conflict; Public Official /Employee; "Township" Councilperson; Vote. Dear Ms. Free: FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics@state.pa.us 99 -611 This responds to your letter of August 22, 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 et seq., presents any prohibition or restrictions upon a "Township" Councilperson voting on a conditional use request which may result in a conflict of interest. Facts: As a "Township" Councilperson, you request an advisory on a voting issue. You reside in Edinboro Borough beside an area zoned R1. In the R1 zone, a conditional use is requested for surface mining and processing. At this point, you are unsure where the processing operation will be located. After referencing the "conflict of interest provision in the Ethics Act, you state that the conditional use request, if granted, would in no way benefit you or your family. You believe that you would be negatively impacted by the dust, noise and the like. You state that the conditional use request is a very controversial issue in your area due to the location of the proposed surface mining and processing operation which is on a main two -lane highway (Route 99) that serves over 8,000 vehicles per day in a fairly populated area and is near a very rare fen. You have enclosed two maps which are incorporated herein by reference. Map I is a map of the area and Map II is a copy of the sketch submitted with the conditional use request. You pose the following question. On a five member council, if the vote were two in favor and two against, would you be required to abstain from voting or would you have the right to cast the tie - breaking vote? You ask whether your right to cast the tie - breaking vote is only applicable to a three member board /council. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 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. Free, 99 -611 September 27, 1999 Page 2 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. As a Borough Councilperson, 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. 65 Pa.C.S. §1102. "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. "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. EE! g 99 -611 September 27, 1999 Page 3 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 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. (1) 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). 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. Fee, 99 -61 1 September 27, 1999 Page 4 While you do not specify the nature of your familial relations, the Ethics Act defines you family" as "a parent, spouse, child, brother or sister ". If voting on the conditional use request would result in a financial benefit to you and your immediate family, as in increasing the value of your property, you would have a conflict of interest as to that matter and would have to abstain and observe the disclosure requirements of Section 1 103(j) of the Ethics Act. If a public official has a conflict under the Ethics Act, there are two exclusions which may apply in certain instances: the de minimis and class /subclass exclusions. The de minimis exclusion would not have application since the conditional use approval would not have an economic consequence which would be insignificant. As to whether you would fall within the class /subclass exclusion to the statutory definition of "conflict of interest ", only general guidance may be given. If you or your immediate family would be affected to the same degree as a class consisting of the general public or a subclass consisting, of an industry, occupation or other group which includes you, a member or your immediate family or a business with which you or a member of your immediate family is associated, Section 1 103(a) would not restrict you from participating in matters pertaining to the conditional use request. For this exclusion to apply, your property would have to be affected in value to the same degree as all other property owners in the class /subclass. Such a determination would have to be made through a comparison of real estate appraisals as to the affected properties. However, since you have not presented any appraisals with your request, it is not possible to speculate as to the impact of the conditional use on the value of your property and to what extent your immediate family would be affected as compared to other members of the class /subclass. Your assertion that the granting of the conditional use would have a negative impact upon the value of your property is speculative. In Laser, Opinion No. 93 -002, which involved a township supervisor residing adjacent to lands of a proposed development, the issue was whether the supervisor would have a conflict of interest under Section 3(a) of the Ethics Law so as to prohibit his participation in matters pertaining to the proposed development, or whether he would fit within the "subclass" exclusion to the definition of "conflict of interest" as set forth in Section 2 of the Ethics Law. The Commission held that in the absence of appraisals, it was unable to determine whether the value of the township supervisor's property would be affected to the same degree as that of all other property owners in the class /subclass. Because the impact upon the value of the property in question was speculative due to the factual insufficiency, the Commission did not (and could not) reach a conclusion as to whether a conflict existed. Consequently, based upon a factual insufficiency, this Advice is necessarily limited to providing the above general guidance. Turning to your question as to whether you would be permitted to cast the tie - breaking vote to break a 2 -2 deadlock on a five member council, Mlakar, sum, makes it clear that only when the governmental body is unable to take official action because the majority or other legally required vote is unattainable due to the number of members required to abstain, such abstaining members will be permitted to vote if proper disclosures are made. Thus, in the case of a five member council /board, three public officials would have to have a conflict under the Ethics Act in order to make the majority or other legally required vote unattainable. The fact that one or two members would have a conflict would be an insufficient basis under Section 1 103(j) for these members to vote since a majority or other legally required vote could still be attainable despite their abstention. Hence; in the hypothetical you pose, you would not be permitted under Section 1 103(j) to cast the tie breaking vote given a 2 -2 deadlock on a five member council. Free, 99 -611 September 27, 1999 Page 5 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 respective municipal code. Conclusion: As Borough Councilperson, you are :a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1 101 et sesj.. If your participation in matters pertaining to the conditional use request would result in a financial benefit to you and your immediate family, you would have a conflict of interest as to that matter and would be required to abstain and observe the disclosure requirements in accordance with Section 1103(j) of the Ethics Act. If you would have a conflict based upon a pecuniary benefit consisting of an increase in the value of your property, the class /subclass exclusion to conflict would apply only if your property would be affected to the same degree as all the properties in the class /subclass. Real estate appraisals would be necessary to determine whether your property would in fact be affected to the same degree. " If a voting deadlock occurs in the five member board /council, three public officials would have to have a conflict under the Ethics Act in order to make the majority or other legally required vote unattainable. Hence, you would not be permitted to cast the tie - breaking vote to break a 2 -2 deadlock on a five member council. 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 forma/ 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. cerely, Vincent Dopko Chief Counsel