Loading...
HomeMy WebLinkAbout89-021 DettraMr. Norman E. Dettra, Jr. Sixth Floor The Berkshire 501 Washington Street Box 877 Reading, PA 19603 -0877 Dear Mr. Dettra: 1989. I. Issue STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Helena G. Hughes, Chair Robert W. Brown, Vice Chair W. Thomas Andrews G. Sieber Pancoast James M. Howley Michael J. Washo DATE DECIDED: September 27, 1989 DATE MAILED: October 10, 19R9 Re: Conflict, Public Official, Township Supervisor, Voting, Zoning Ordinance, Real Estate Interest of Supervisors, Rule of Necessity. This opinion is issued in response to your request of August 21, What restrictions does the Public Official and Employee Ethics Law impose upon two supervisors of a three member board from voting upon the enactment of a zoning ordinance when the two supervisors have entered written agreements regarding the sale of unimproved lands in the township. II. Factual Basis for Determination 89 - 021 You are the solicitor for the three member board of supervisors of Robeson Township, Berks County, Pennsylvania. The three supervisors Daniel A. Casciano, Jr., Galen L. Brown and William B. Meister held a public meeting on July 13, 1989 as per Section 610 of Mr. Norman E. Dettra, Jr. Page 2 the Pennsylvania Muncipalities Planning Code to consider and vote upon a zoning ordinance known as the "Robeson Township Zoning Ordinance of 1989." The current zoning ordinance known as the "Robinson Township Zoning Ordinance of 1974" would be repealed by the proposed ordinance. Although the board did not vote upon the ordinance at the July 13, 1989 meeting, a vote would occur within 90 days after the last public hearing pursuant to 608 of the Pennsylvania Municipalities Planning Code. A second public meeting occurred on July 24, 1989 at which time residents and property owners of the township submitted various comments concerning the proposed zoning ordinance. Supervisors Casciano and Brown each informed you that they had entered into written agreements regarding the sale of unimproved lands in Robeson Township. Regarding the situation of Supervisor Brown, on November 30, 1987 he and his brother Nevin entered into a option agreement to sell approximately fourteen acres of unimproved land, adjoining Cedar Hill Road and State Route 724 in Robeson Township, to Kardon Industries, Inc. of 1201 Chestnut Street, Philadelphia, Pennsylvania for a gross consideration of $18,000.00. The option agreement provides that Kardon Industries, Inc. would pay Galen and Nevin Brown an additional consideration of $200.00 per dwelling unit with the dwelling units totalling either two hundred or the maximum number of units allowed by governmental authority whichever is greater. Supervisor Brown also served on the Robeson Township Planning Commission from 1975 or 1976 to the present. Although the members of the Planning Commission did review the current zoning ordinance between 1984 and 1985, the records of the Planning Commission and the recollections of the persons attending those meetings reflect that Supervisor Brown did not participate or vote on any matters concerning the zoning classification or issues involving lands in which he had an interest. The subject fourteen acres is located in three zoning districts under the Robeson Township Zoning Ordinance of 1974, namely R -1, R -2, and R -3 residential zoning districts. An R -1 zoning requires a minimum lot area of two acres with single family detached dwellings allowed among other uses. An R -2 zoning requires a minimum lot area of one acre with single family detached dwelling uses allowed among others. An R -3 zoning is an area served by both approved public and community sanitary sewage system and water supply requiring a minimum lot area of 20,000 square feet with single family detached dwellings among other uses permitted. The same subject fourteen acres of land under the 1989 ordinance is located in a MDR- Medium Density Residential District which zoning Mr. Norman E. Dettra, Jr. Page 3 relates to areas served by public or community sewage disposal system and water supply requiring a. minimum lot area of 15,000 square feet or 15,000 square feet for each dwelling unit. The MDR Zoning permits single family detached dwellings and single family semi - detached dwellings as permitted uses. In addition the 1989 ordinance allows for planned residential development (PRD) as a permitted use by condition. For PRD, the minimum area is 50 acres with an minimum lot area for single family detached dwellings of 12,000 square feet and for single families semi - detached dwelling of 8,000 square feet. Although a PRD could not be located on the subject acreage because it is less than the minimum 50 acre minimum requirement, a PRD could be located if the purchaser of the tract would acquire an additional 36 acres of contiguous real estate. You express your understanding that Kardon Industries, Inc. has entered into an option agreement similar to the one with Galen and Nevin Brown to acquire the title to several hundred acres of land adjoining the subject real estate. Finally, on September 15, 1989, the Browns did sell the fourteen acres to Kardon Industries, Inc. for the base consideration of $18,000.00. The proposed ordinance will affect unit density which would affect the amount of the additional consideration due to the Browns. As to Daniel Casciano, Jr., he is the general partner of Hopewell Heights Associates, a partnership comprised of himself and six other limited partners with a limited partner certificate filed with the Department of State at Harrisburg, on January 21, 1988 at file number 8807 -731. The partnership on June 16, 1989 entered into an agreement to sell one hundred twenty acres of unimproved land in the Borough of Birdsboro, Robeson and Union Townships, Berks County, which adjoin Hopewell Street and the Wilmington and Northern Division of the Reading Company Railroad to Haines and Kibblehouse, Inc. of 2052 Luron Road, Skippack, Pennsylvania, for a consideration of one million four hundred fifty thousand dollars. By July 17, 1989 mining and drilling rights relative to the subject real estate were conveyed by the partnership to Haines and Kibblehouse, Inc. and on the same date all surface rights in the subject real estate were conveyed by the partnership to John B. Haines, IV, John R. Kibblehouse, Harry R. Budenz, Jr., and Lee S. Detwiler, partners trading as Robeson -Union Associates, partnership. Following these conveyances, the partnership received a consideration of one million four hundred thousand one hundred ninety -eight dollars and forty -three cents as its net selling price with one seventh of that amount being paid to Daniel A. Casciano, Jr. as his share. Supervisor Casciano has been a supervisor in Robeson Township from 1968 up to the current time with the exception of the period between 1968 and 1974. Although the Board of Supervisors studied and Mr. Norman E. Dettra, Jr. Page 4 reviewed the 1989 ordinance from 1984 to the current date, the records of the board and the recollections of the persons indicate that Mr. Casciano did not participate or vote on the matters of the zoning classification or any other issues involving lands in which he had an interest. The portion of the one hundred twenty -eight acres which is situated in Robeson Township is located in a R -4 Residential Zoning District under the 1974 Zoning Ordinance, which provides for areas served by both approved public and community sanitaries sewage system and water supply requiring a minimum lot area of twenty thousand square feet with the single family detached dwellings among other uses. The subject real estate is situated in a HDR -High Density Residential Zoning District under the 1979 Ordinance. An HDR Zoning serves areas with public or community sewage disposal and water supply requiring a minimum lot area of 15,000 square feet or 15,000 square feet for each dwelling unit. The permitted uses under the HDR Zoning includes single family detached dwellings and single family semi- detached dwellings. In addition the 1989 Zoning Ordinance provides for a PRD as a use permitted by condition. For a PRD the minimum area is twenty -five acres with the minimum lot for a single family detached dwelling of 12,000 square feet and a PRD would be permitted use since the subject real estate exceeds the minimum twenty -five acre requirement. After referencing Act 9 of 1989 and in particular Section 3(j) which deals with the "Rule of Necessity," you request an opinion on behalf of Supervisors Brown and Casciano regarding their duties under the Ethics Law. III. Discussion As Supervisors for Robeson Township, Daniel A. Casciano, Jr. and Galen L. Brown are "public officials" as that term is defined under the Public Official and Employee Ethics Law. Accordingly they are subject to the provisions of the Ethics Law and the restrictions are inapplicable to them. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined under the Ethics Law: Section 2. Definitions. "Conflict or conflict of interest." Use by a public official or public employee of the Mr. Norman B. Dettra, Jr. Page 5 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. "Conflict" or "conflict of interest" 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 or 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. "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. Section 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value or no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. In applying the above provisions of the Ethics Law to the instant matter, Supervisor Brown would have a conflict in participating or voting regarding the 1989 Ordinance because of the agreement as to the fourteen acres. If Mr. Brown were to participate or vote in this situation, his participation or vote regarding the proposed 1989 zoning ordinance could result in a private pecuniary benefit to himself. In this regard, we note that the agreement does not limit the purchase to a mere flat consideration but the consideration is also dependent upon the number of units which the purchaser could build on the property. Therefore, the situation exists that the zoning could impact upon the number of units which would be placed upon the property which in turn would affect the consideration received by Mr. Brown if Kardon Industries, Inc. were to purchase the property through the exercise of the option to purchase. Mr. Norman E. Dettra, Jr. Page 6 Section 3(j) of the Ethics Law provides: Section 3. Restricted activities. (j) 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. In light of Supervisor Brown's conflict under Section 3(a) of the Ethics Law, 3(j) requires that he must abstain from voting on any matters affecting the real estate in which he sold the option agreement and publicly announce and disclose the nature of his interest in the next public meeting in a memorandum filed with the secretary recording the minutes. Turning to the situation of Supervisor Casciano, it is noted that Mr. Casciano through a business with which he was associated had Mr. Norman E. Dettra, Jr. Page 7 substantial interest in a hundred twenty acres of land which was sold in June of this year. Since Supervisor Casciano has sold his fractional interest in the real estate and has no other or residuary interest at this time, he would not have a conflict regarding voting on the proposed 1989 zoning ordinance provided no understanding existed between Mr. Casciano and the purchaser of the property regarding his voting on the 1989 proposed zoning ordinance. See Section 3(b) and 3(c) of the Ethics Law supra. Subject to the provisions of Section 3(b) and 3(c) of the Ethics Law, Mr. Casciano would not be precluded from voting on the proposed 1989 zoning ordinance, based upon the facts as portrayed. In the event that Haines and Kibblehouse has at some future time any action pending before the township board of supervisors then the further advice of this commission may be necessary. Turning to the matter of Section 3(j) of the Ethics Law as it relates to the "Rule of Necessity," the latter provision of Section 3(j) would have applicability regarding voting if Mr. Casciano would abstain or vote contrary to the third supervisor who does not have the conflict. At the current time however, based upon the factors before this comission, the provisions of Section 3(j) do not appear to be at issue. The propriety of the proposed conflicts has only been addressed under the Ethics Law; the applicability of any other statute, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. IV. Conclusion Supervisors Daniel A. Casciano, Jr. and Galen L. Brown are public officials subject to the provisions of the Ethics Law. Supervisor Brown has an agreement to the Kardon Industries, Inc. to purchase real estate in Robeson Township has a conflict and is precluded from participating and voting on any matter relating to the real estate under Section 3(a) of the Ethics Law. Supervisor Brown under Section 3(j) of the Ethics Law must publicly announce and disclose at the next public meeting the nature of his interest in a written memorandum filed with the secretary who keeps the minutes. Supervisor Casciano, Jr. does not have a conflict under Section 3(a) of the Ethics Law since the business with which he was associated effectuated a sale of a hundred twenty eight acres of land and Mr. Casciano has no interest at this time relative to the proposed zoning ordinance of 1989. Section 3(j) of the Ethics Law would have applicability regarding voting if Mr. Casciano would abstain or vote contrary to the third supervisor who does not have the conflict. Lastly, the propriety of the proposed conflict has only been addressed under the Ethics Law. Mr. Norman E. Dettra, Jr. Page 8 Pursuant to Section 7(9)(i), this Opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance of the evidence of the advice given. such. This letter is a public record and will be made available as Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. By th Commissio elena G. Hughes, Chair