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HomeMy WebLinkAbout20-534 Hurni PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL September 4, 2020 To the Requester: Stephen J. Hurni 20-534 Dear Stephen J. Hurni: This responds to your letter dated July 31, 2020, by which you requested an Issue: Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon an individual serving as a Supervisor for Plainfield Township , Northampton County, Pennsylvania, with regard to participating in discussions, votes, or other actions of the Township Board of Supervisors in matter(s) pertaining to Waste Management, Inc. , including a request for the rezoning of property needed for the proposed expansion of a landfill owned by Waste Management, where: (1) the individual facility that converts methane gas from the landfill owned by Waste Management into electricity pursuant to a contractual arrangement with Waste Management; (3) GKEDC contracts with Waste Management to operate the aforesaid facility; and (4) GKEDC uses the net proceeds from the sale of the electricity generated by the aforesaid facility to benefit various causes within the Pen Argyl Area School District. Facts: As a Township Supervisor, you request an advisory from the Commission based upon submitted facts, the material portion of which may be fairly summarized as follows. GKEDC is a nonprofit 501(c)(3) corporation that was incorporated in 1999. You have submitted copies of the following documents, which are incorporated herein by reference: (1) the GKEDC Articles of Incorporation; (2) the GKEDC Bylaws; and (3) Resolutions enacted by the GKEDC Board on April 9, 2001, and July 22, 2013, which amended Article IV of the GKEDC Bylaws (pertaining to the GKEDC Directors). The GKEDC Articles of Incorporation provide that GKEDC shall have no members. Pursuant to the GKEDC Bylaws, the GKEDC Board is composed of nine Members. The Members of the GKEDC Board shall consist of three citizens who reside in or operate a business in the Borough of Pen Argyl, three citizens who reside in or operate a business Hurni, 20-534 September 4, 2020 Page 2 in the Borough of Wind Gap, and three citizens who reside in or operate a business in the Township. Members of the GKEDC Board are elected by the GKEDC Board. Members of the GKEDC Board are not compensated for their service. The officers of GKEDC are elected by the GKEDC Board and include, inter alia, a Secretary. You are a Member of the GKEDC Board, and you currently serve as the Secretary of GKEDC. The GKEDC Board currently has eight Members. GKEDC owns a facility Facility) that converts methane gas from a landfill pursuant to a contractual arrangement with Waste Management, which owns the Landfill. GKEDC has no employees and contracts with Waste Management to operate the Facility. GKEDC uses the net proceeds from the sale of the electricity generated by the Facility to benefit various causes within the Pen Argyl Area School District, which serves the Borough of Pen Argyl, the Borough of Wind Gap, and the Township. Waste Management periodically appears before the Township Board of Supervisors to seek various approvals for general business purposes. You state that because GKEDC benefits from the success of Waste Management, the Township Solicitor has consistently advised you to abstain from any votes involving Waste Management that might benefit GKEDC. Waste Management recently approached the Township Board of Supervisors with a plan to expand the Landfill , which would require the rezoning of property needed for the Landfill Expansion. You abstained from a vote of the Township Board of Supervisors that de property needed for the Landfill Expansion. You state that GKEDC has decided to generate a letter requesting that the Township Board of Supervisors reconsider its vote aforesaid rezoning request. Based upon the above submitted facts, the question that is presented by your advisory request is whether the Ethics Act would impose prohibitions or restrictions upon you with regard to participating in discussions, votes, or other actions of the Township Board of Supervisors regarding needed for the Landfill Expansion or other matters related to Waste Management. 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 requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester 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 requester has truthfully disclosed all of the material facts. As a Township Supervisor, you are a public official subject to the provisions of the Ethics Act. Sections 1103(a) and 1103(j) of the Ethics Act provide: § 1103. Restricted activities (a) Conflict of interest.--No public official or public employee shall engage in conduct that constitutes a conflict of interest. (j) Voting conflict.--Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or Hurni, 20-534 September 4, 2020 Page 3 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(a), (j). The following terms related to Section 1103(a) are defined in the Ethics Act as follows: § 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. "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. Hurni, 20-534 September 4, 2020 Page 4 65 Pa.C.S. § 1102. S 65 Pa.C.S. § 1102, 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. In each instance of a conflict of interest, the public official/public employee would be required to abstain from participation. The abstention requirement would not be limited merely to voting, but would extend to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. Subject to certain statutory exceptions, in each instance of a voting conflict, Section 1103(j) of the Ethics Act would require the public official/public 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. Kistler v. State Ethics Commission, 610 Pa. 516, 22 A.3d 223 (2011), in order to violate Section 1103(a) of the Ethics Act, a public official/public employee: to the purpose of obtaining for himself a private pecuniary benefit. Such directed action implies awareness on the part of the \[public official/public employee\] of the potential pecuniary benefit as well as the motivation to obtain that benefit for himself. Kistler, supra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics benefit for himself, his family, or his business, and then must take action in the form of one or more specId., 610 Pa. at 528, 22 A.3d at 231. In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. Per the submitted facts, there is no basis to conclude that GKEDC would be a governmental entity. Therefore, you are advised that GKEDC is a business with which you are associated in your capacities as a Director and an officer (Secretary). See, Rendell v. State Ethics Commission, 603 Pa. 292, 983 A.2d 708 (2009) ( -profit entities). You would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in discussion(s), vote(s), or other action(s) of the Township Board of Supervisors regarding needed for the Landfill Expansion or other matter(s) related to Waste Management if: (1) you would be consciously aware of a private pecuniary benefit for yourself or GKEDC; (2) your action(s) would constitute one or more specific steps to attain that benefit; and (3) neither of the statutory exclusions to the definition of "conflict" or "conflict of interest" as set forth in the Ethics Act, 65 Pa.C.S. § 1102, would be applicable. In each instance of a conflict of interest, you would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements Hurni, 20-534 September 4, 2020 Page 5 of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. 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: Based upon the submitted facts that: (1) you are a Supervisor for Plainfield Township , located in Northampton County, Pennsylvania; (2) the is a nonprofit 501(c)(3) corporation that was incorporated in 1999; (3) the GKEDC Articles of Incorporation, which are incorporated herein by reference, provide that GKEDC shall have no members; (4) pursuant to the GKEDC Bylaws, which are incorporated herein by reference, the GKEDC GKEDC Board shall consist of three citizens who reside in or operate a business in the Borough of Pen Argyl, three citizens who reside in or operate a business in the Borough of Wind Gap, and three citizens who reside in or operate a business in the Township; (6) Members of the GKEDC Board are elected by the GKEDC Board; (7) Members of the GKEDC Board are not compensated for their service; (8) the officers of GKEDC are elected by the GKEDC Board and include, inter alia, a Secretary; (9) you are a Member of the GKEDC Board, and you currently serve as the Secretary of GKEDC; (10) the pursuant to a contractual arrangement with Waste Management I owns the Landfill; (12) GKEDC has no employees and contracts with Waste Management to operate the Facility; (13) GKEDC uses the net proceeds from the sale of the electricity generated by the Facility to benefit various causes within the Pen Argyl Area School District, which serves the Borough of Pen Argyl, the Borough of Wind Gap, and the Township; (14) Waste Management periodically appears before the Township Board of Supervisors to seek various approvals for general business purposes; (15) because GKEDC benefits from the success of Waste Management, the Township Solicitor has consistently advised you to abstain from any votes involving Waste Management that might benefit GKEDC; (16) Waste Management recently approached the Township Board require the rezoning of property needed for the Landfill Expansion; (17) you abstained from a vote of the Township Board of Supervisors that denied Wast request for the rezoning of property needed for the Landfill Expansion; and (18) GKEDC has decided to generate a letter requesting that the Township Board of Supervisors equest, you are advised as follows. As a Township Supervisor, you are a public official subject to the provisions of the 65 Pa.C.S. § 1101 et seq. Per the submitted facts, there is no basis to conclude that GKEDC would be a governmental entity. Therefore, you are advised that GKEDC is a business with which you are associated in your capacities as a Director and an officer (Secretary). You would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in discussion(s), vote(s), or other action(s) of the Township Board of Supervisors regarding e Landfill Expansion or other matter(s) related to Waste Management if: (1) you would be consciously aware of a private pecuniary benefit for yourself or GKEDC; (2) your action(s) would constitute one or more specific steps to attain that benefit; and (3) neither of the statutory exclusions to the definition of "conflict" or "conflict of interest" as set forth in the Ethics Act, 65 Pa.C.S. § 1102, would be applicable. Hurni, 20-534 September 4, 2020 Page 6 In each instance of a conflict of interest, you would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, 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 requester 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. Sincerely, Robin M. Hittie Chief Counsel