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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
December 8, 2020
To the Requester:
20-546
This responds to your letter dated October 19, 2020, by which you requested a
confidential advisory from
Issue:
Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon an individual
serving as an A and B of a \[type of political subdivision\] C with regard to voting on a land
owns a property that the
developer would purchase and develop as part of the proposed development.
Facts: You request a confidential advisory from the Commission on behalf of
Individual D. You have submitted facts that may be fairly summarized as follows.
Individual D is an A and B of the C of Political Subdivision E, located in \[name of
county\], Pennsylvania. The Political Subdivision E C consists of three As.
is located in Political Subdivision E. Individual D is not named on the deed for the
Property, and he has no ownership interest involving the Property.
A developer named G
adjacent parcels in order to develop them and construct Hs (the
Development an A and J of the Political Subdivision E C, owns one
) that the Developer plans to purchase.
The Developer recently submitted a land development plan involving the Property,
Property, and other parcel(s) , which is
currently being reviewed as a preliminary plan by the Political Subdivision E K. You state
that the Political Subdivision E C had not voted on any approvals regarding the Land
Development Plan as of the date of your advisory request letter (October 19, 2020).
Based upon the above submitted facts, you pose the following questions:
Confidential Advice, 20-546
December 8, 2020
Page 2
(1) Whether Individual D would have a conflict of interest with regard to voting
on the Land Development Plan or other land development submission(s)
pertaining to the Proposed Development as a result of his
ownership of the Property; and
(2) If Individual D would have a conflict of interest with regard to voting on the
Land Development Plan or other land development submission(s)
pertaining to the Proposed Development, what procedures for voting would
be permitted under the Ethics Act if another A of the Political Subdivision E
C would also have a conflict of interest with regard to voting on the Land
Development Plan or other land development submission(s) pertaining to
the Proposed Development.
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 an A and B of the Political Subdivision E C, Individual D is 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
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).
Confidential Advice, 20-546
December 8, 2020
Page 3
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.
"Immediate family." A parent, spouse, child, brother
or sister.
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.
The use of authority of office is not limited merely to voting, but extends 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.
In each instance of a conflict of interest, a public official/public employee 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.
In applying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
relative\] owns the Property, which would be purchased and developed by the Developer
as part of the Proposed Development, you are advised that Individual D would have a
conflict of interest under Section 1103(a) of the Ethics Act with regard to voting on the
Land Development Plan or other land development submission(s) pertaining to the
Proposed Development. (It is noted that the submitted facts do not suggest any potential
Confidential Advice, 20-546
December 8, 2020
Page 4
Subject to the voting conflict exceptions of Section 1103(j) of the Ethics Act,
Individual D would be required to abstain fully from participation in each instance of a
conflict of interest.
The two voting conflict exceptions contained in Section 1103(j) of the Ethics Act
are strictly limited to voting and do not authorize an individual with a conflict to make a
motion to put the matter in a posture for a vote. When two members on a three-member
board would have conflicts of interest, only the non-conflicted member could make a
motion. Since the non-conflicted member could not second his own motion and it would
be otherwise impossible to obtain a second to the motion, a conflicted member, having
previously abstained and disclosed his conflict, could then second the motion if he would
so choose. A conflicted member could not discuss or advocate as to the motion. A
conflicted member could only vote on the motion. Cf., Confidential Opinion, 04-003.
Therefore, where Individual D and a second A of the Political Subdivision E C
would have conflicts of interest with regard to voting on the Land Development Plan or
other land development submission(s) pertaining to the Proposed Development, only the
third, non-conflicted A of the Political Subdivision E C could make a motion. If such a
motion would not be made, there would be no opportunity for a motion to be seconded. If
such a motion would be made, Individual D, having previously abstained and disclosed
the conflict, could then second the motion if he would so choose. Individual D could not
discuss or advocate as to the motion. Individual D could only vote on the motion. Cf.,
Confidential Opinion, 04-003.
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 L.
Conclusion: Based upon the submitted facts that: (1) Individual D is an A and B
of the C of Political Subdivision E, located in \[name of county\], Pennsylvania; (2) the
Political Subdivision E C consists of three relative\], Individual
D is not named on the deed for the Property, and he has no ownership interest involving
and J of the Political Subdivision E C, owns
one of the adjacent parcels ( Prop) that the Developer plans to
purchase; (7) the Developer recently submitted a land development plan involving the
(s) ,
which is currently being reviewed as a preliminary plan by the Political Subdivision E K;
and (8) the Political Subdivision E C had not voted on any approvals regarding the Land
Development Plan as of the date of your advisory request letter (October 19, 2020), you
are advised as follows.
As an A and B of the Political Subdivision E C, Individual D is a public official
Pa.C.S. § 1101 et seq.
is defined by the Ethics Act. Based upon the submitted fact that \[type of
relative\] owns the Property, which would be purchased and developed by the Developer
as part of the Proposed Development, you are advised that Individual D would have a
conflict of interest under Section 1103(a) of the Ethics Act with regard to voting on the
Confidential Advice, 20-546
December 8, 2020
Page 5
Land Development Plan or other land development submission(s) pertaining to the
Proposed Development.
Subject to the voting conflict exceptions of Section 1103(j) of the Ethics Act,
Individual D would be required to abstain fully from participation in each instance of a
conflict of interest.
Where Individual D and a second A of the Political Subdivision E C would have
conflicts of interest with regard to voting on the Land Development Plan or other land
development submission(s) pertaining to the Proposed Development, only the third, non-
conflicted A of the Political Subdivision E C could make a motion. If such a motion would
not be made, there would be no opportunity for a motion to be seconded. If such a motion
would be made, Individual D, having previously abstained and disclosed the conflict,
could then second the motion if he would so choose. Individual D could not discuss or
advocate as to the motion. Individual D could only vote on the motion.
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