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HomeMy WebLinkAbout00-604 JonasMarc D. Jonas, Esquire Fox, Rothschild, O'Brien & Frankel 1250 South Broad Street Lansdale, PA 19446 -0431 ADVICE OF COUNSEL August 25, 2000 00 -604 Re: Conflict; Public Official /Employee; Township; Developer; Land Use; Vote; Business Relationship. Dear Mr. Jonas: This responds to your letter of July 12, 2000, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. §1101 et seq., presents any prohibition or restrictions upon an elected township official as to participating in matters pertaining to a proposed land development where: (1) the developer, in order to better configure the proposed development, is proposing a "land swap" involving land owned by the elected official; (2) the "land swap" is not contingent upon the developer obtaining necessary land use approvals; and (3) the "land swap" may be purely land for land or may include the payment of additional consideration based upon the relative values of the respective parcels. Facts: As Solicitor to a Pennsylvania township, you seek an advisory on behalf of an elected township official. The submitted facts are as follows. A developer is assembling parcels of ground for a proposed development. In order to better configure the proposed development, the developer is proposing a "land swap" involving land owned by the elected township official. The "land swap" is finalized and is not contingent upon the developer obtaining the rezoning or other necessary land use approvals. Based upon the foregoing facts, you pose the following issues. 1. Whether the township official should recuse himself or herself from the legislative rezoning process; 2. Whether the township official should recuse himself or herself from consideration of any other land use approvals needed for the development; and Jonas, 00 -604 August 25, 2000 Page 2 3. Whether it would make any difference if the "land swap" would be purely land for land or if it would also include the payment of additional consideration based upon the relative values of the parcels involved. 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 requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor 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 requestor has truthfully disclosed all of the material facts. As an elected township official, the township official would be a public official as that term is defined in the Ethics Act, and hence you are subject to the provisions of that Act. Section 1103(a) of the Ethics Act provides: Section 1103. Restricted activities. (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. §1103(a). The following terms are defined in the Ethics Act as follows: Section 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. In addition, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to Jonas, 00 -604 August 25, 2000 Page 3 imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. Section 1103(j) of the Ethics Act provides as follows: Section 1103. Restricted activities. (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(j). In each instance of a conflict, Section 1103(j) requires the public official /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 or supervisor. In the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Act, then voting is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. In applying the above provisions of the Ethics Act to the instant matter, pursuant to Section 1103(a) of the Ethics Act, 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. We shall now address the questions you have posed. It is first noted that given the land swap agreement, a business relationship either exists or existed between the township official and the developer. The Commission has, in the past, considered the extent to which a public official would have a conflict where a business relationship would exist between the public official and another party. In Miller, Opinion 89 -024, the Commission addressed the issue of whether a township zoning Jonas, 00 -604 August 25, 2000 Page 4 officer was restricted by the Ethics Law from working for a consulting firm when that firm provided services to private clients whose plans could be brought before the township zoning commission for approval. The Commission first determined that the consulting firm was a business with which the township zoning officer was associated. Next, the Commission concluded that the zoning officer had a conflict as to approving, recommending, or playing any role in the approval of permits or in relation to any township action involving a client, plan or project involving the consulting firm. Id. The concern in Miller, was that the township zoning officer would look favorably on a matter submitted for township action by private clients so as to engender a continued private business relationship with those clients. In Kannebecker, Opinion 92 -010, the Commission considered whether the Ethics Law would impose any restrictions upon a township supervisor as to individuals who had matters pending before the township when the supervisor was an attorney for those individuals in unrelated matters. Although the Commission followed Miller in principle, it refined the Miller holding: We believe that you would have indeed have a conflict as to an ongoing client or a client who is on a retainer even if you would not represent the client as to a matter pending before the Township. However, as to former or past clients, we do not believe as a general rule that you would have a conflict. Under certain circumstances, a conflict could exist as to past clients; such would depend upon factors like the number of prior representations of any given client and the period of time over which that occurred. Kannebecker, at 5 (Emphasis added). Based upon Miller, supra and Kannebecker, supra, if the township official would have an ongoing business relationship with the developer, the official would have a conflict as to any matter before the township that would involve the developer. In each instance of a conflict, the township official would have to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act. See, Dettra, Opinion 89- 021; Mihalik, Opinion 90 -002. See, also, Snyder v. SEC, 686 A. 2d 843 (Pa. Commw. Ct. 1996). It would not make any difference that the land swap would be purely land for land or would include the payment of additional consideration based upon the relative values of the parcels involved because either would have a financial value. However, if the business relationship with the developer would be a past business relationship, no conflict would exist as to matters that would involve the development subject to the following qualifications. First, the land swap would be finalized and would not be dependent upon the developer obtaining any land use approvals as you have factually stated. Second, the township official, after the land swap, would have no financial or property interest as to the development and would have no other business relationship with the developer or even the expectation of any other business relationship. See, Amato, Opinion 89 -002. Lastly, there would be no improper understandings as set forth in Sections 1103(b) and 1103(c) of the Ethics Act as discussed above. As to the above, only general advice may be given in that your request does not specify whether the business relationship between the township official and the developer is an ongoing or past relationship. In any event, the Commission issues advices based upon the facts as submitted; the Commission does not engage in an independent investigation of the facts. Jonas, 00 -604 August 25, 2000 Page 5 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 respective municipal code. Conclusion: The township elected official is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. The township official would have conflict as to any matter before the township that would involve the developer if the business relationship with the developer would be ongoing. In each instance of a conflict, the township official would have to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act. It would not make any difference that the land swap would be p urely land for land or would also include the payment of additional consideration based the relative values of the parcels involved because either would have a financial value. If the business relationship with the developer would be a past business relationship, no conflict would exist as to matters that would involve the development subject to the following qualifications. First, the land swap would be finalized and would not be dependent upon the developer obtaining any land use approvals. Second, the township official, after the land swap, would have no financial or property interest as to the development and would have no other business relationship with the developer or even the expectation of any other business relationship. Lastly, there would be no improper understandings as set forth in Sections 1103(b) and 1103(c) of the Ethics Act as discussed above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), 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 requestor 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 §13.20. 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, Vincent J. Dopko Chief Counsel