HomeMy WebLinkAbout00-622 KatchurBrian R. Katchur
64 Beaver Street
P.O. Box 269
Beaver Meadows, PA 18216
Dear Mr. Katchur:
ADVICE OF COUNSEL
October 27, 2000
00 -622
Re: Conflict; Public Official /Employee; Member; Borough Council; Purchasing Parcel
Within Subdivision; Voting On Subdivision.
This responds to your letter of September 27, 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 a member of a
borough council as to voting on a subdivision plan when the council member is in the
process of purchasing a parcel of land within the subdivision on which he intends to build
his primary residence.
Facts: As a member of the Beaver Meadows Borough Council ( "Borough
ouncil "), you seek an advisory based upon the following submitted facts.
You are in the process of purchasing a 1.2 acre parcel of land on which you intend
to construct your primary residence. The parcel is in a residentially zoned district and is
part of a subdivision in the Borough. You state that you will purchase the parcel at its
fair market value. You further state that neither you nor the Borough has any other
contracts or associations with the corporation that is selling the parcel to you.
The subdivision in which the parcel is located must first be approved by the
Borough's Planning Board and the County Planning Commission. You ask whether you
may vote on the subdivision when it comes before the Borough Council for approval
given the foregoing facts.
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
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October 27, 2000
Page 2
been submitted. It is the burden of the re 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 a member of the Beaver Meadows Borough Council, you are 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
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
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October 27, 2000
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(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. Thus, if a matter would come before the
Borough Council that would result in financial gain to you, a member of your immediate
family or a business with which you or a member of your immediate family are
associated, you would have a conflict and would be required to abstain and observe the
disclosure requirements of Section 1103(j) of the Ethics Act as set forth above.
Having established the above principles, your specific inquiry shall now be
addressed.
As to whether you would be permitted to vote on the subdivision, it is initially noted
that the facts which you have submitted are unclear in that you first state that the
subdivision must be approved by the Borough's Planning Board, County Planning
Commission and Borough Council, but then state that the parcel is in a residentially
zoned district. Therefore, it is assumed that the developer must obtain the approvals of
the various governmental bodies as to matters unrelated to zoning. Based upon the
foregoing assumption, you are advised as follows. You would not have a conflict as to the
subdivision subject to the following qualifications. First, your agreement to purchase of
the 1.2 acre parcel of land would not be contingent upon the developer obtaining any
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October 27, 2000
Page 4
approvals as to the subdivision. Second, no approvals as to the subdivision would be
necessary in order for you to construct a residence upon the land. Lastly, there would be
no improper understandings as set forth in Sections 1103(b) and 1103(c) of the Ethics
Act as discussed above.
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: As a member of the Beaver Meadows Borough Council ( "Borough
Council "), 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. You would not have a
conflict as to voting on a subdivision when you are in the process of purchasing a parcel
of land within that subdivision on which you intend to build your primary residence,
subject to the following qualifications. First, your agreement to purchase of the parcel of
land would not be contingent upon the developer obtaining any approvals as to the
subdivision. Second, no approvals as to the subdivision would be necessary in order for
you to construct your residence upon the land. Lastly, there would be no improper
understandings as set forth in Sections 1103(b) and 1103(c) of the Ethics Act as
discussed above. 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