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HomeMy WebLinkAbout20-546 Confidential 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