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Home My WebLink About99-623 WillliamsonRobert G. Williamson, Esq. Scanlon, Lewis and Williamson 190 Washington Street P.O. Box 423 East Stroudsburg, PA 18301 -0423 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL October 26, 1999 FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics @state.pa.us 99 -623 Re: Conflict; Public Official /Employee; Supervisor; Agreement of Sale; Real Estate; Developer; Conditional Use Application; Vote; Participation. Dear Mr. Williamson: This responds to your letter of September 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 gt seq., presents any prohibition or restrictions upon a township supervisor as to participating in discussions regarding a conditonal use application submitted by a developer regarding real estate, where a portion of the real estate is subject to an agreement of sale with the supervisor who holds a 25% interest in that portion. Facts: As Solicitor for Smithfield Township ( "Township "), you seek an advisory on behalf of Russell Albert ( "Albert "), a Township Supervisor. Albert has authorized you to seek the advisory which is assumed to relate to Albert's conduct as per my letter of September 20, 1999. Albert has entered into an Agreement of Sale to sell real estate in which he has a 25% interest to a developer who is combining that property with several much larger tracts and developing the property into a mixed use commercial condominium project. The developer will be required to appear before the Board of Supervisors for a Conditional Use Application. Albert recognizes that he will have a conflict of interest as to voting on the Conditional Use Application and intends to abstain from voting on the same. You request an advisory as to whether he may participate in the discussions regarding the Conditional Use Application or whether he must abstain. 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. 65 Pa.C.S. §§1107(10), (11). Williamson, 99 -623 October 26, 1999 Page 2 An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Supervisor for Smithfield Township, Albert is a public official as that term is defined in the Ethics Act, and hence Albert is 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. 65 Pa.C.S. §1102. "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. 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. Williamson, 99 -623 October 26, 1999 Page 3 (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). 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 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. Based on the facts which you have submitted, if voting on the Conditional Use Application would result in a financial benefit to Albert, as in facilitating the sale of his real estate or increasing the value of his land, he would have a conflict as to such matter. In each instance of a conflict of interest, Albert would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 1 103(j) of the Ethics Act. Assuming the Conditional Use Application would be a matter in which Albert would have a pecuniary interest, he would also be prohibited from participating in discussions related to such matter under Section 1103(a) of the Ethics Act set forth Williamson, 99 -623 October 26, 1999 Page 4 above. This is true because use of authority of office is more than the mere mechanics of voting. It encompasses all of the tasks need to perform the functions of a given position. See, Juliante, Order No. 809. Use of authority of office includes, for example, discussing, conferring with others, and lobbying for a particular benefit. 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 a Supervisor for Smithfield Township, Albert is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 gt a . If the Conditional Use Application would be a matter in which Albert would have a financial interest, he would have a conflict of interest as to such matter and would have to abstain from voting and observe the disclosure requirements of Section 1 103(j) of the Ethics Act. He would also have to abstain frbm participating in discussions related to the Conditional Use Application under Section 1 103(a) of the Ethics Act. 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. 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 . opko Chief Counsel