HomeMy WebLinkAbout00-634 WillettsAlice Putnam Willetts
4 College Avenue
Swarthmore, PA 19081
Dear Ms. Willetts:
ADVICE OF COUNSEL
December 27, 2000
00 -634
Re: Conflict; Public Official /Employee; Member; Borough Council; Former President of
Senior Citizens Association; Housing Committee; Long Term Care Facility;
Rezoning; Vote.
This responds to your letter of November 23, 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 borough council
member as to voting on a senior citizen's association's rezoning request for land on
which to build a long term care facility, where the council member is active in the
association's housing committee, which has been instrumental in initiating a plan for the
long term care facility.
Facts: You currently are a member of the Swarthmore Borough Council. Before
you were elected to Council in 1998, you were responsible for starting a Senior Citizen's
Association in Swarthmore. You served as President of the Board of the Senior Citizen's
Association and assembled community leaders to research the possibility of initiating a
plan for a long term care facility.
The Senior Citizen's Association eventually incorporated. The Association's
Housing Committee, together with several influential citizens and an
architect /developer /advisor, assumed the responsibility of establishing a long term care
facility without remuneration. You state that while you no longer serve as President of
the Board of the Senior Citizen's Association, having relinquished that position upon your
election to Borough Council, you remain active in the Association's Housing Committee.
You state that in order to build a long term care facility, the Swarthmore Senior
Citizen's Association needs land. Accordingly, a request for land for an inn and a long
term care facility has been made to Swarthmore College, which owns the only open land
Willetts, 00 -634
December 27, 2000
Page 2
in Swarthmore. The land will need to be rezoned and the Borough Council will be
required to vote on the rezoning request.
Given your involvement in the Senior Citizen's Association, you ask whether you
would have a conflict and be required to abstain from voting on the long term care facility
project.
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 Swarthmore 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:
$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:
$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.
Willetts, 00 -634
December 27, 2000
Page 3
"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:
$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.
Willetts, 00 -634
December 27, 2000
Page 4
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.
Having established the above principles, the question you have posed shall now
be addressed.
Regarding your question as to whether you would be required to abstain from
voting on Swarthmore Senior Citizen Association's rezoning request for the long term
care facility, the Commission recently addressed this issue in Keenan, Opinion 00 -002,
which involved a borough council member who was the resident of an incorporated
senior center association, a member of a senior center, and member of a senior center
advisory board. The Commission held that the senior center association, of which the
council member was president, was a business with which the council member was
associated. Therefore, the council member would have a conflict as to financial matters
involving the association. As to the senior center and the senior center advisory board,
the Commission held that the council member would not have a conflict as to financial
matters involving those entities if they were separate entities from the senior center
association and neither would be a business in which the council member would be a
director, officer, owner, employee or would have a financial interest.
Based upon Keenan, supra and the factual assumption that the Swarthmore
Senior Citizen's Association is not a business with which you are associated and that
there is no element of a prohibited private pecuniary benefit, you would not have a
conflict of interest as to the rezoning request.
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 Borough Code.
Conclusion: As a member of Swarthmore 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. Based upon the factual assumption that the Swarthmore
Senior Citizen's Association is not a business with which you are associated and that
there is no element of a prohibited private pecuniary benefit, you would not have a
conflict of interest as to the rezoning request. 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.
Willetts, 00 -634
December 27, 2000
Page 5
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