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HomeMy WebLinkAbout00-524 McGowanRenee McGowan Zoning Officer Benner Township 1224 Buffalo Run Road Bellefonte, PA 16823 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL February 24, 2000 Re: Conflict; Public Official /Employee; Zoning Officer; Township; Engineering Firm; Subdivision Plan. Dear Ms. McGowan: This responds to your letter of January 21, 2000 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 _se ., presents any prohibition or restrictions upon a township zoning officer with regard to an engineering firm employed by the zoning officer to subdivide property she owns jointly with her spouse where: 1) the township will contract with another township to review and comment upon the subdivision plan which will be submitted to the county planning office for approval; and 2) the engineering firm currently has plans pending before the township for approval. Facts: You have been employed by Benner Township as a Zoning Officer since 1991. As part of a divorce settlement, you have agreed to subdivide property owned by ten you and your acres and two residences. You wish located o in the subdivide the property into two separate te lots, each lot containing one residence. Sweetland Engineering is in possession of all the survey information regarding your property; therefore, you wish to retain this firm for the subdivision. After Sweetland Engineering prepares the subdivision plan, it will submit it to the Centre County Planning Office for approval since Benner Township does not have its own subdivision or land development ordinance. The County will contact the Township for review and comment. The Township Solicitor has recommended that another neighboring township review and comment on the subdivision plan to maintain "objectivity." You are concerned that you may have a conflict of interest since Sweetland Engineering currently has plans before the Township for approval. You ask whether you would still would fo have a conflict evievv and comm en on your su on plane and ask a neighboring Township to r FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us 00 -524 McGowan, 00 -524 February 24, 2000 Page 2 Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. § §1107(10), (111, 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 Zoning Officer for Benner Township, you are a public employee as that term is defined in the Ethics Act, and hence you are subject to the provisions of that Act. Section 1103(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 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. 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 McGowan, 00 -524 February 24, 2000 Page 3 official /employee would be influenced thereby. Reference is made to these provisions of the law not vide a imply that there esponse been or the question presented ression thereof but merely to provide 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 oval majority or other legally required vote of app 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. §11030). 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. Since the term "immediate family" is defined to include a parent, spouse, child, brother or sister, and since your spouse is in one of the familial relationships delineated McGowan, 00 -524 February 24, 2000 Page 4 above, Section 1 103(a) of the Ethics Act would prohibit you from participating in matters before the Township that would result in a financial benefit to you or your spouse. In such an instance of a conflict, you would be required to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act as set forth above. Having established the above principals, it is clear that you would have a conflict of interest with regard to the subdivision plan for the land that you and your husband own. However, based upon your specific factual representation that the Township will contract with another township to review and comment upon the subdivision plan for the property you and your husband own, and you as Zoning Officer, will have no involvement with the plan for your property, you would not have a conflict as to this particular matter. As for whether you would have a conflict as to matters submitted by Sweetland Engineering which do not involve the property owned by you or your husband, you would not have a conflict provided that there would be no improper understandings as set forth in Sections 1103(b) and (c) of the Ethics Act as discussed above. Again, it is not suggested that you would engage in such conduct and the above is provided in order to be complete in our response. 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 Zoning Officer for Benner Township, you are a public employee subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et se . In your capacity as Zoning Officer, you would have a conflict of interest with regard to the subdivision plan for property that you and your husband own. In each instance of a conflict of interest, you would be required to abstain from participation and observe the disclosure requirements of Section 1103(j) of the Ethics Act. However, based upon your specific factual representation that the Township will contract with another township to review and comment upon the subdivision plan for property that you and your husband own, and you as Zoning Officer, will have no involvement with the plan for your property, you would not have a conflict as to this particular matter. You would not have a conflict as to matters submitted by Sweetland Engineering for Township approval which do not involve the property owned by you and your husband, provided that there would be no improper understandings as set forth in Sections 1 103(b) and (c) 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. McGowan, 00 -524 February 24, 2000 Page 5 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 1. 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. Vincent +op o Chief Counsel