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HomeMy WebLinkAbout00-631 CaldwellGary A. Caldwell, Esquire 1201 Ninth Avenue Altoona, PA 16602 Dear Mr. Caldwell: ADVICE OF COUNSEL December 19, 2000 00 -631 Re: Conflict; Public Official /Employee; Township; Member; Zoning Hearing Board; Zoning Ordinance; Zoning Challenge; Business With Which Associated; Private Medical Offices; Class /Subclass; Quorum; Vote. This responds to your letter of November 15, 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 three - member township zoning hearing looard in matters pertaining to the construction of a medical facility on the campus of his employer. Facts: As Solicitor for the Logan Township Zoning Hearing Board, a three - member board, you seek an advisory from the State Ethics Commission on behalf of the Board's Chairman, Joseph Reasy ("Reasy"). You have submitted facts which may be fairly summarized as follows. A challenge has been filed with the Logan Township Zoning Hearing Board with regard to the proposed construction of a student health facility on the Penn State- Altoona campus. Chairman Reasy is an employee of Penn State - Altoona. The challenge has been filed by Bon Secours Holy Family ( "Bon Secours"). The following documents pertaining to the challenge have been submitted with your request: (1) an October 27, 2000 letter to the Logan Township Zoning Administrator from Counsel for Bon Secours, outlining the nature of the Bon Secours challenge; (2) the Application of Bon Secours requesting a hearing before the Logan Township Zoning Hearing Board; and (3) a pertinent excerpt from the Logan Township Zoning Ordinance regarding Institutional Districts. All of the above documents which you have submitted are incorporated herein by reference. According to the documents which you have submitted, the proposed student health facility would be constructed on the Penn -State Altoona campus by three entities -- Caldwell, 00 -631 December 19, 2000 Page 2 the parent corporation of Altoona Hospital; a for - profit affiliate of Altoona Hospital; and a for - profit physicians' group. The plans call for a $1.4 million, 11,000 square foot student health facility with 2,500 square feet of office space for private physicians associated with Blair Medical Associates. With regard to the latter, Bon Secours believes that the physicians intend to open a primary care office and urgent care center designed to solicit patients from the general public, in contravention of the Logan Township Zoning Ordinance. The letter from Counsel for Bon Secours indicates that the Logan Township Board of Supervisors has already approved the project, allegedly based upon a determination and representation to the Board by the township's Zoning Officer and /or Engineer that the project, with the inclusion of the private physicians' offices, would comply with the township's Zoning Ordinance. The letter states the understanding of Bon Secours that the Zoning Hearing Board was not consulted nor was it involved in making that determination. Bon Secours appeals from the alleged decision of the Zoning Officer and /or Engineer regarding zoning. Based upon the forgoing, you pose numerous questions relative to a possible conflict of interest for Chairman Reasy. Your questions may be fairly summarized as follows: 1. Whether Reasy would have a conflict of interest as to the Bon Secours challenge, or whether the class /subclass exception in the Ethics Act's definition of "conflict" or "conflict of interest" would apply, such that Reasy would not have a conflict of interest; 2. If a conflict would exist, whether Reasy as Chairman of the Zoning Hearing Board would be permitted to: (a) continue to preside as Chairman at the meeting and fulfill any quorum requirements for conducting the meeting as long as he would abstain from voting and publicly announce and disclose the nature of his interest in accordance with Section 1103(j) of the Ethics Act; (b) speak at the hearing or discuss matters raised at the hearing; and (c) question witnesses or receive evidence. You additionally ask whether the Zoning Hearing Board would be able to satisfy the quorum requirements of the Municipalities Planning Code if two of the three members would abstain from voting due to conflicts, but all three members would attend the hearing. 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 Member of the Logan Township Zoning Hearing Board, Reasy is a public official as that term is defined in the Ethics Act, and hence he is subject to the provisions of the Ethics Act. Section 1103(a) of the Ethics Act provides: Caldwell, 00 -631 December 19, 2000 Page 3 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. "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. 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 Caldwell, 00 -631 December 19, 2000 Page 4 (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. 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. Penn State - Altoona, which employs Reasy, is a business with which Reasy is associated. See, e.q., Novak, Opinion 91 -009; McQuaide, Opinion 80 -043. Pursuant to Section 1103(a) of the Ethics Act, Reasy would be prohibited from participating in actions of the Zoning Hearing Board that would financially impact Penn State - Altoona. Thus, Reasy would have a conflict of interest and would not be permitted to participate in matters before the Zoning Hearing Board regarding the proposed construction of a student health facility on the Penn State - Altoona campus. Reasy would specifically have a conflict of interest as to the challenge filed by Bon Secours, appealing from the alleged decision of the Zoning Officer and /or Engineer regarding the propriety of the plans under the township's Zoning Ordinance. Caldwell, 00 -631 December 19, 2000 Page 5 The class /subclass exception would not apply under the facts which you have submitted. That exception applies only where all requirements of the statute are met: (1) the public official /public employee, his immediate family member, or business with which he or his immediate family member is associated is a member of a class consisting of the general public or a subclass consisting of an industry, occupation, or other group; and (2) the public official /public employee, his immediate family member, or business with which he or his immediate family member is associated is affected by the matter in question to the same degree as the other members of the class /subclass. In this case, neither requirement is satisfied. The zoning challenge is specific as to the proposed lans to build the student health facility on the Penn State - Altoona campus. There does not appear to be any class /subclass involved, let alone one for which the members would be affected to the same degree as Penn State - Altoona. Given the existence of a conflict, Reasy would be required to abstain as to matters before the Zoning Hearing Board regarding the proposed construction of a student health facility on the Penn State - Altoona campus, and specifically the Bon Secours challenge presently before the Board. In each instance of a conflict, Reasy would be required to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act as set forth above. In response to your inquiry of whether Reasy could chair the hearing at which the Bon Secours challenge would be considered, you are advised that the Ethics Act would not prohibit Reasy from chairing the hearing provided that: (1) Reasy would not participate, vote, or otherwise use the authority of office in a manner which could substantively affect the outcome of the decision; and (2) Reasy would not have access to confidential information which could be used for a prohibited private pecuniary benefit. Reasy would be constrained to act in a limited fashion as Chair for the purposes of procedurally allowing the matter to be presented, reviewed and acted upon by the members of the board who would not have a conflict. Similarly, Sections 1103(a) and 1103(j) of the Ethics Act would not prohibit the presence of Reasy for the purposes of constituting a quorum, subject to the above restrictions. However, Section 1103(a) of the Ethics Act would prohibit Reasy from participating as Chair /Board Member in discussions involving the matter of the Bon Secours challenge. Reasy would also be prohibited from questioning witnesses or receiving evidence at the hearing. You are advised that the 'use of authority of office" extends beyond voting and encompasses all of the tasks needed to perform the functions of a given position. See Juliante, Order 809. Your final question regarding the quorum requirements of the Municipalities Planning Code may not be addressed because such is beyond the jurisdiction of the State Ethics Commission. However, it is parenthetically noted that if two members of the three member Zoning Hearing Board would abstain due to conflicts under the Ethics Act, pursuant to Section 1103(j) of the Ethics Act, such abstaining members would be permitted to vote despite their conflicts if proper disclosures would be made. 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 and Chair of the Logan Township Zoning Hearing Board, Joseph Reasy ( "Reasy ") 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. Penn State - Altoona, which employs Reasy, is a business with which Reasy is associated. Caldwell, 00 -631 December 19, 2000 Page 6 Pursuant to Section 1103(a) of the Ethics Act, Reasy would have a conflict of interest and would not be permitted to participate in matters before the Zoning Hearing Board regarding the proposed construction of a student health facility on the Penn State - Altoona campus. Reasy would specifically have a conflict of interest as to a related challenge filed by Bon Secours Holy Family ( "Bon Secours"), appealing from the alleged decision of the township Zoning Officer and /or Engineer regarding the propriety of the plans under the township's Zoning Ordinance. The class /subclass exception would not apply. Reasy would be required to abstain from such matters and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act as set forth above. The Ethics Act would not prohibit Reasy from chairing the hearing in the matter of the Bon Secours challenge, provided that: (1) Reasy would not participate, vote, or otherwise use the authority of office in a manner which could substantively affect the outcome of the decision; and (2) Reasy would not have access to confidential information which could be used for a prohibited private pecuniary benefit. Reasy would be constrained to act in a limited fashion as Chair for the purposes of procedurally allowing the matter to be presented, reviewed and acted upon by the members of the board who would not have a conflict. Sections 1103(a) and 1103(j) of the Ethics Act would not prohibit the presence of Reasy for the purposes of constituting a quorum, subject to the above restrictions. Section 1103(a) of the Ethics Act would prohibit Reasy from participating as Chair /Board Member in discussions involving the matter of the Bon Secours challenge. Reasy would also be prohibited from questioning witnesses or receiving evidence at the hearing. 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