HomeMy WebLinkAbout21-501 BirdPHONE: 717-783-1610
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To the Requester:
Terry Bird
Dear Mr. Bird:
STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL
January 15, 2021
FACSIMILE: 717-787-0806
WEBSITE: www.ethics.pa.gov
21-501
This responds to your letter dated November 12, 2020, received December 15,
2020, by which you requested an advisory from the Pennsylvania State Ethics
Commission ("Commission").
Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act") 65
75-78. § 1101 et seq., would impose prohibitions or restrictions upon an individual
serving as a 17ownship Supervisor with regard to reviewing or voting on the
subdivision/land development aspect of a developer's proposed residential development,
where the individual owns and resides with his family at a property that is adjacent to the
proposed residential development.
Facts: You request an advisory from the Commission based upon submitted facts
tray be fairly summarized as follows.
You are a Supervisor for Lower Frederick Township ("Township"), located in
Montgomery County, Pennsylvania. The Township Board of Supervisors consists of five
Members.
You own and reside with your family at a property that consists of ten acres. You
have a small family farm with horses, goats, and sheep on your property. A tract of land
4the "Tract") adjacent to your property is under agreement with a developer named
` Prestige Builders" (the "Developer"). The Developer proposes to construct a single-
family residential development (the "Proposed Development") with 42 homes on the
Tract, which consists of approximately 63 acres. The homes would be located in a cluster
on a small part of the Tract that is directly adjacent to your property. The Proposed
Development is bordered by a Township park, areas of open space, and another farm of
approximately 17 acres that has horses. A third farm that consists of 4 acres is on the
other side of your property. Your farm and the other two farms are currently in or applying
to become part of the Township's Agricultural Security Area.
In order for the Proposed Development to move forward, the Developer will need
two approvals from the Township Board of Supervisors. The Developer will first need the
Bird, 21-501
Tuary 15, 2021
Page 2
Township Board of Supervisors to approve a conditional use application that seeks
permission to develop the Tract with the proposed cluster of homes instead of building
the homes throughout the Tract. A hearing on the conditional use application was
scheduled for November 2020, and you announced that you would not be participating in
the hearing as a Member of the Township Board of Supervisors. You planned to
participate in the hearing as a member of the public. If the conditional use application is
approved, the Developer will then need the Township Board of Supervisors to approve
the subdivision/land development aspect of the Proposed Development.
Based upon the above submitted facts, you ask whether the Ethics Act would
impose prohibitions or restrictions upon you in your cappacity as a Township Supervisor
with regard to reviewing or voting on the subdivision/Iand development aspect of the
Proposed Development.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
e EthicsTct, 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 truthffully 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 11030) 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.
0) 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.
Bird, 21-501
Tuary 15, 2021
Page 3
65 Pa.C.S. §§ 1103(a), 0).
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.
65 Pa.C.S. § 1102
Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict"
or "conflict of interest," 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 11030) of the Ethics Act would be applicable. Additionally,
the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied
in the event of a voting conflict.
Per the Pennsylvania Supreme Court's decision in 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-
... must act in such a way as to put his office/public position]
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
Act, a public official/public employee "must be consciously aware of a private pecuniary
Bird, 21-501
Tuary 15, 2021
Page 4
benefit for himself, his family, or his business, and then must take action in the form of
one or more specific steps to attain that benefit." Id., 610 Pa. at 528, 22 A.3d at 231.
A conflict of interest would not exist to the extent the "de minimis exclusion" and/or
the "class/subclass exclusion" set forth within the Ethics Act's definition of the term
"conflict" or "conflict of interest," 65 Pa.C.S. § 1102, would be applicable.
The de minimis exclusion precludes a finding of conflict of interest as to an action
having a de minimis (insignificant) economic impact. Thus, when a matter that would
otherwise constitute a conflict of interest under the Ethics Act would have an insignificant
economic impact, a conflict would not exist, and Section 1103(a) of the Ethics Act would
not be implicated. See, Kolb, Order 1322; Schweinsburg, Order 900.
In order for the class/subclass exclusion to apply, two criteria must be met: (1) the
affected public official/public employee, immediate family member, or business with which
the public official/public employee or immediate family member is associated must be a
member of a class consisting of the general public or a true subclass consisting of more
than one member; and (2) the public official/public employee, immediate family member,
or business with which the public official/public em Ioyee or immediate family member is
associated must be affected "to the same degree" (in no way differently) than the other
members of the class/subclass. 65 Pa.C.S. § 11027 see, Kablack, Opinion 02-003;
Rubenstein, Opinion 01-007. The first criterion of the effusion is satisfied where the
members the proposed subclass are similarly situated as the result of relevant shared
characteristics. The second criterion of the exclusion is satisfied where the
individual/business in question and the other members of the class/subclass are
reasonably affected to the same degree by the proposed action. Kablack, supra.
In ap Iying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
You would not have a conflict of interest pursuant to Section 1103(a) of the Ethics
Act, with regard to participating in matters before the Township Board of Supervisors
unless your use of office resulted in a private pecuniary (financial) benefit to you, a
mar of your immediate family, or a business with which you or a member of your
immediate family is associated. The submitted facts do not indicate whether the approval
of the subdivision/land development aspect of the Proposed Development by the
Township Board of Supervisors would increase or decrease the value of your property or
otherwise financially impact you, a member of your immediate family, or a business with
which you or a member of your immediate family is associated.
Therefore, you are generally advised that you do not have a conflict of interest
under Section 1103(a) of the Ethics Act with regard to reviewing or voting on the
subdivision/land development aspect of the Proposed Development unless: (1) you would
be consciously aware of a private pecuniary benefit for yourself, a member of your
immediate family, or a business with which you or a member of your immediate family is
associated; (2) your action(s) would constitute one or more specific steps to attain that
benefit; and �3) neither the de minimis exclusion nor the class/subclass exclusion 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
11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements
of Section 11030) 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
Bird, 21-501
Tuary 15, 2021
Page 5
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
Lower Frederick Township ("Township"), located in Montgomery County, Pennsylvania;
(2) the Township Board of Supervisors consists of five Members; (3) you own and reside
with your family at a property that consists of ten acres; (4) you have a small family farm
with horses, goats, and sheep on your property; (5) a tract of land (the "Tract") adjacent
to your property is under agreement with a developer named "Prestige Builders" (the
"Developer ); 6) the Developer proposes to construct a single family residential
development (t e "Proposed Development") with 42 homes on the Tract, which consists
of approximately 63 acres; (7) the homes would be located in a cluster on a small part of
the Tract that is directly adjacent to your property; (8) the Proposed Development is
bordered by a Township park areas of open space, and another farm of approximately
17 acres that has horses; (9) a third farm that consists of 4 acres is on the other side of
your property; (10) your farm and the other two farms are currently in or applying to
become part of the Township's Agricultural Security Area; (11) in order for the Proposed
Development to move forward, the Developer will need two approvals from the Township
Board of Supervisors; (12) the Developer will first need the Township Board of
Supervisors to approve a conditional use application that seeks permission to develop
the Tract with the proposed cluster of homes instead of building the homes throughout
the Tract; (13) a hearing on the conditional use application was scheduled for November
2020, and you announced that you would not be participating in the hearing as a Member
of the Township Board of Supervisors; (14) you planned to participate in the hearing as a
member of the public; and (15) if the conditional use application is approved, the
Developer will then need the Township Board of Supervisors to approve the
subdivision/land development aspect of the Proposed Development, you are advised as
follows.
As a Township Supervisor you are a Public official subject to the provisions of the
Public Official and Employee Ethics Act (`Ethics Act"), 65 Pa.C.S. § 1101 et seq.
Pursuant to Section 1103(a) of the Ethics Act, you generally would not have a conflict of
interest with regard to participating in matters before the Township Board of Supervisors
unless your use of office would result in a private pecuniary (financial) benefit to you, a
member of your immediate family, or a business with which you or a member of your
immediate family is associated. The submitted facts do not indicate whether the approval
of the subdivision/land development aspect of the Proposed Development by the
Township Board of Supervisors would increase or decrease the value of your property or
otherwise financially impact you, a member of your immediate family, or a business with
which you or a member of your immediate family is associated.
Therefore, you are generally advised that you would not have a conflict of interest
under Section 1103(a) of the Ethics Act with regard to reviewing or voting on the
subdivision/land development aspect of the Proposed Development unless: (1) you would
be consciously aware of a private pecuniary benefit for yourself, a member of your
immediate family, or a business with which you or a member of your immediate family is
associated; (2) your action(s) would constitute one or more specific steps to attain that
benefit; and �3) neither the de minimis exclusion nor the class/subclass exclusion 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
11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements
of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting
conflict.
Bird, 21-501
Tuary 15, 2021
Page 6
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 actual/received
at the Commission within thin (30 days of the date o t is vice
pursuant to 51 Pa. Code � 13.2rh). the appeal may be received at the
Commission by hand delivery, United States mail, delivery service, or
by FAX transmission f717-787-0806). Failure to file such an appeal at
the Commission within thirty (30) days may result in the dismissal of
the appeal.
Sincerely,
rian D. J cis'n
Chief Cou