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HomeMy WebLinkAbout00-626 BoddenJohn A. Bodden, Sr. 85 Sellersville Road Chalfont, PA 18914 Re: Conflict; Public Official /Employee; Township Supervisors; Real Estate Associate Broker; Independent Contractor; Business with which Associated; Vote; Curative Amendment. Dear Mr. Bodden: ADVICE OF COUNSEL November 17, 2000 00 -626 This responds to your faxed letter received October 18, 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 township supervisor with regard to a curative amendment challenge filed by the board of supervisors as to the township's zoning ordinance where: 1) the supervisor, in a private capacity, is a real estate associate broker; (2) the supervisor has a relationship as an independent contractor with a realty company which has listed for sale a large property that would be affected by the curative amendment; and 3) the supervisor would have no involvement with the sale of that property. Facts: As a Township Supervisor for New Britain Township ( "Township ") in Bucks ounty, Pennsylvania, you request an advisory from the State Ethics Commission. You have submitted facts which may be fairly summarized as follows. In your private capacity, you are a licensed real estate Associate Broker in Pennsylvania. You have a relationship as an independent contractor with Prudential Fox & Roach Realtors ( "PFR ") in Doylestown, Pennsylvania. You describe the relationship as an "association." You state that you receive commissions only, and only on the business that you generate. You share your commissions with PFR in exchange for a desk, telephone, and marketing materials. The New Britain Township Board of Supervisors ( "Board ") is a five - member Board. In January 2000 the Board filed a curative amendment challenge to the Township's own zoning ordinance in an effort to thwart a possible outside challenge to the Township's RA -1 and RA -2 zoning districts, which currently require a minimum lot size of five acres. Bodden, 00 -626 November 17, 2000 Page 2 PFR has listed for sale the Peace Valley Winery ( "Winery" , a 36.83 acre parcel of land which would be affected by the curative amendment. The inery has been listed for sale since April 1999. You state that the owner of the property is supportive of smaller lot zoning beyond what has been advertised. You state that you have not shown - -and will not show - -this particular property. A group of residents wants to keep the minimum lot size in the RA -1 and RA -2 zoning districts at five acres. This group has asked you to recuse yourself from the process and eventual vote on the Boards curative amendment challenge. The group contends that you have a conflict of interest as to the curative amendment challenge because the winery is listed for sale with PFR, and PFR therefore has a financial interest in the sale of that property. When the question of a conflict of interest was raised, you agreed not to vote on the zoning change, because you thought that the appearance of a possible conflict existed. However, you state that you do not want to neglect your responsibility if your abstention is not required. You request an advisory as to whether you would have a conflict of interest under the Ethics Act, based upon the above 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 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 a Township Supervisor, you are a public official subject to the provisions of the Ethics 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 Bodden, 00 -626 November 17, 2000 Page 3 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. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. "Financial interest." Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. 65 Pa.C.S. §1102. Under the current Ethics Act, there is no basis for finding an "appearance" of a conflict. 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 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. Bodden, 00 -626 November 17, 2000 Page 4 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. The above provisions of the Ethics Act shall now be applied to your inquiry. Subject to certain exceptions delineated in the definition of "conflict" or "conflict of interest" above, it is a conflict of interest under Section 1103(a) of the Ethics Act for a public official /public employee to use 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. In applying the above elements to the facts which you have submitted, you are advised that you would not have a conflict of interest as to participating or voting in the matter of the curative amendment challenge filed by the Board, because the final element for a conflict of interest would not be established. Specifically, there would be no basis for a private pecuniary benefit to you, a member of your immediate family, or a business with which you or a member of your immediate family is associated as defined above. Under the facts which you have submitted, you would have no involvement in the sale of the Winery property. As for PFR, although you have a relationship with it as an independent contractor, you are not a director, officer, owner, or employee of PFR, nor do you have a "financial interest" in it. Thus, although PFR may gain financially from a curative amendment, PFR is not a business with which you are associated as such relationship is defined by the Ethics Act. Therefore, the Ethics Act would not prohibit you from participating and voting as to the aforesaid curative amendment challenge filed by the Board, conditioned upon the assumptions that: (1) there would be no improper understandings contrary to Section 1103(b) or Section 1103(c) of the Ethics Act; and (2) there would be no other basis for a conflict of interest. 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 Second Class Township Code. Bodden, 00 -626 November 17, 2000 Page 5 Conclusion: As a Township Supervisor for New Britain Township ( "Township "), 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. Based upon the facts which you have submitted, you would not have a conflict of interest as to participating or voting in the matter of the curative amendment challenge that has been filed by the New Britain Township Board of Supervisors ( "Board ") to the Township's own zoning ordinance regarding the minimum lot size in the Township's RA -1 and RA -2 zoning districts, because the element of a prohibited private pecuniary benefit would not be established. There would be no basis for a private pecuniary benefit to you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. Prudential Fox & Roach Realtors ( "PFR ") is not a business with which you are associated as such relationship is defined by the Ethics Act. The Ethics Act would not prohibit you from participating and voting as to the aforesaid curative amendment challenge that has been filed by the Board, conditioned upon the assumptions that: (1) there would be no improper understandings contrary to Section 1103(b) or Section 1103(c) of the Ethics Act; and (2) there would be no other basis for a conflict of interest. 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