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HomeMy WebLinkAbout01-501 WagnerADVICE OF COUNSEL Renee M. Wagner, Secretary Greenfield Township Board of Supervisors 11184 Rich Hill Road North East, PA 16428 Dear Ms. Wagner: January 4, 2001 01 -501 Re: Conflict; Public Official /Employee; Township; Secretary; Treasurer; Zoning Administrator; Supervisor; Participating in Rezoning Request; Speedway; Racetrack; Restaurant; Automotive Store; Business With Which Associated. This responds to your letter of November 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 township secretary /treasurer /zoning administrator and a township supervisor as to participating in matters that may result in the development of a speedway where: 1) the spouse of the secretary /treasurer /zoning administrator owns and operates a snowmobile, motorcycle, all- terrain vehicle parts, accessories and repair business near the proposed development; and 2) the supervisor co -owns a restaurant near the proposed development. Facts: As Secretary /Treasurer and Zoning Administrator for Greenfield Township ("Township "), you request an advisory on your own behalf and on behalf of Larry Magoon "Magoon "), a Township Supervisor. You have submitted an unofficial description of your job duties as Secretary /Treasurer and Zoning Administrator for Greenfield Township, which is incorporated herein by reference. You have also submitted copies of several other documents, which are incorporated herein by reference. The documents include the following: 1. Letter dated September 14, 2000 from Richard T. Ruth, Esquire ( "Ruth ") to Kurt L. Sunderberg, Esquire ( "Sunderberg "); 2. Letter dated September 20, 2000 from Sunderberg to Ruth with attached copy of Frill, Advice 00 -546; Wagner /Magoon, 01 -501 January 4, 2001 Page 2 3. Letter dated November 3, 2000 from Ruth to Christine McClure, Esquire ( "McClure "); 4. Letter dated November 8, 2000 from McClure to Ruth; 5. Letter dated November 21, 2000 from Ruth to McClure; 6. Minutes of the Township Board of Supervisors for August 14, 2000, September 11, 2000, and October 2, 2000; and 7. Zoning Maps of Greenfield Township showing the zoning designation before and after the zoning amendment and the location of a business owned by Supervisor Magoon and a business owned by your husband. The following is a summary of facts as submitted in your letter of November 27, 2000 or from the official minutes of the Greenfield Township Board of Supervisors dated August 14, 2000, September 11, 2000, and October 2, 2000, of which administrative notice is taken. In November 1997, after completing a review of all the Township zoning districts, the Planning Commission recommended that the C -1 (Highway /Plaza Commercial) zone be expanded. The C -1 expansion was intended to convert several partially zoned C -1 or completely zoned R -A (Agricultural /Rural Low Density Residential) parcels to parcels zoned C -1 in their entireties. On August 11, 2000, Lake Erie Promotions, Inc. ( "Lake Erie "), a land developer, requested information from the Township regarding the possibility of rezoning a parcel of land it intended to purchase for the construction of a NASCAR /ASA certified racetrack. The parcel, which was owned by Norman and Maxine Akerly and zoned R -A, was located within C -1 expansion area. At the Board of Supervisors' regular meeting on August 14, 2000, the Board reviewed Lake Erie's verbal rezoning request and discussed the Planning Commission's 1997 recommendation to expand the C -1 zone. You were directed to contact three parcel owners in the expansion area to inquire whether they would want their parcels to be rezoned C -1. On September 11, 2000, the Board of Supervisors held a public hearing, at which time, the three parcels owners whom you had contacted and Norman and Maxine Akerly made a verbal request to change the zoning on their parcels to C -1. In addition, Lake Erie submitted a written request to rezone the Akerly parcel to C -1. At the regular meeting that followed the public hearing that same day, the Board of Supervisors unanimously moved to advertise a special meeting to adopt an ordinance changing the zoning on the four parcels in the expansion area to C -1. At the special meeting on October 2, 2000, Ordinance 2000 -3 was adopted amending the Zoning Map and rezoning the four parcels in their entireties to C -1. Supervisor Magoon abstained from the vote following an allegation from an attorney representing a group of concerned citizens that Magoon should recuse himself from the vote because of his ownership of Colt Station Restaurant, the only restaurant in the Township. You state that your husband owns Wild Side Performance, a "part time Snowmobile, Motorcycle, ATV, parts, accessories and repair business." You state that your husband's business is approximately three miles from the proposed development. Based upon the foregoing facts, you ask whether you or Supervisor Magoon would have a conflict of interest as to the rezoning matter. Wagner /Magoon, 01 -501 January 4, 2001 Page 3 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. Likewise, the Commission cannot and does not consider any commentary from third parties. 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. It is further noted that, pursuant to Sections 1107(10) and (11) of the Ethics Act, 65 Pa.C.S. §1107(10), (11), an opinion /advice may given only as to prospective ( "future ") conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice, but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent you have inquired as to conduct which has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may, and shall be addressed. As Secretary /Treasurer and Zoning Administrator for Greenfield Township, you are a public official /public employee as those terms are defined in the Ethics Act. As a Supervisor for Greenfield Township, Magoon is a public official as that term is defined in the Ethics Act. Hence, you and Magoon 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 Wagner /Magoon, 01 -501 January 4, 2001 Page 4 the performance of duties and responsibilities unique to a particular public office or position of public employment. "Immediate family." A parent, spouse, child, brother or sister. "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: $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). Wagner /Magoon, 01 -501 January 4, 2001 Page 5 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. The term "immediate family" is defined to include a parent, spouse, child, brother or sister. Because your husband is in one of the familial relationships delineated above, he is a member of your immediate family. Wild Side Performance, a business that your husband owns, is a business with which he is associated. Further, Colt Station Restaurant, a business that Supervisor Magoon co -owns, is a business with which he is associated. Pursuant to Section 1103(a) of the Ethics Act, you would be prohibited from using the authority of your office as Township Secretary/Treasurer and Zoning Administrator or confidential information for the private pecuniary benefit of yourself, your husband or Wild Side Performance. Magoon would be prohibited form using the authority of his office as Township Supervisor or confidential information for the private pecuniary benefit of himself or Colt Station Restaurant. If a matter would come before you in your official capacity as Secretary /Treasurer or Zoning Administrator that would result in a financial gain to you, your husband or Wild Side Performance, you would have a conflict under Section 1103(a) of the Ethics Act. Similarly, if a matter would come before the Board of Supervisors that would result in a financial gain to Magoon or Colt Station Restaurant, Magoon would have a conflict under Section 1103(a) of the Ethics Act. In each instance of a conflict, you and Magoon would be required to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act. Having established the above principles, your specific inquiry shall now be addressed. With regard to the rezoning matter, it is factually noted that on October 2, 2000, the Board of Supervisors adopted Ordinance 2000 -3, which amended the Zoning Map by expanding the C -1 zone. Hence, it would appear that the rezoning matter has now been concluded. To the extent that you are inquiring as to the propriety of your or Supervisor Magoon's participation in the rezoning matter in past proceedings, as noted above, such "past conduct" cannot be addressed herein. However, to the extent that you are inquiring as to prospective conduct, in particular, as to whether you and Magoon may participate in matters as to the proposed development of the speedway, you are advised as follows. Based upon the facts that you have submitted, neither you nor Supervisor Magoon would have a conflict of interest as to participating in matters involving the proposed development of the speedway. This conclusion is based upon Armstrong, ()pinion 97 -001, which involved a township supervisor who was a principal shareholder of heating and air conditioning business that received a subcontract as to a renovation of a building owned by a waste management company. The issue in Armstrong was Wagner /Magoon, 01 -501 January 4, 2001 Page 6 whether, under those facts, the supervisor would have a conflict of interest in waste management matters that did not involve the renovation project. The Commission first determined that the supervisor's financial connection to the waste management company was indirect because: 1) the supervisor's heating and air conditioning business contract was with the general contractor, not the waste management company; and 2) the matter currently pending before the board of supervisors concerned a matter totally unrelated to the renovation project. Characterizing the connection between the supervisor and the waste management company as an "attenuated business relationship," the Commission stated, "Although the certainty of financial gain is not required to establish a conflict, the interest cannot be considered to be remote." Armstrong, at 4. Based upon the foregoing, the Commission held that the supervisor would not have a conflict as to waste management matters that were unrelated to the renovation project. The Commission's holding in Armstrong was consistent with a prior opinion, Garner, Opinion 93 -004, which involved a township supervisor who was employed by an insurance company that provided surety bonds for a consulting company. The consulting company was subsequently hired by a developer to provide services on a development project that was scheduled to come before the township board of supervisors. The facts were such that it was impossible to determine whether the insurance company would receive surety bond work from the consultant or whether the developer would even require the consultant to post a surety bond. The issue was whether the supervisor would have a conflict as to the development project given his employer's involvement with the consulting company. The Commission first cited Amato, Opinion 89 -002, wherein the Commission concluded that where a public official was seeking to participate in the award of a contract, and the business with which he was associated was two steps removed from the matter, that is, the public official was employed by a company that sold supplies to subcontractors who, in turn, did business with the contractor who bid on the contract, no conflict would exist, provided that the public official could not reasonably and legitimately anticipate that a financial relationship would result from the award of the contract. The Commission then stated: In the instant matter, we believe that the situation is analogous to Amato in that [the supervisor] is employed by an insurance company which may obtain surety bond work from a consultant provided a surety bond is required of the consultant by the developer. Once again, the connection between the developer and the insurance company is attenuated by being two steps removed. We must therefore conclude that unless [the supervisor] has a reasonable and legitimate anticipation of a financial relationship as to his business obtaining surety bond work, which is a factual question that we cannot address, [the supervisor] would be permitted to participate and vote. Garner, Opinion 93 -004, at 5 (Emphasis added). Just as in Armstrong, supra, Garner, supra, and Amato, supra the submitted facts do not establish with any certainty that a use of authority of office by you or Magoon will result in a pecuniary benefit to either Colt Station Restaurant or Wild Side Performance if the speedway is developed. In this regard, it is possible that the speedway will have its own concession stands where food will be sold on facility grounds. Likewise, it is possible that the racecar drivers will bring their own parts and supplies to the speedway, such as tires, lubricants, additives, and the like. In short, it is speculative that there will be a need to purchase parts and supplies from Wild Side Wagner /Magoon, 01 -501 January 4, 2001 Page 7 Performance assuming, of course, that Wild Side Performance actually sells racecar parts. Any possible financial gain that might be received by Colt Station Restaurant or Wild Side Performance is comparable to other commercial enterprises such as area motels, banks, grocery stores, pharmacies, gasoline stations and convenience stores. Based upon prior precedent and conditioned upon the assumption that neither you, Magoon nor immediate family members have a financial interest in Lake Erie, the speedway, or the property on which the speedway will be built, you and Magoon would not have a conflict as to participating in matters involving the speedway development. 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. Conclusion: As Secretary/Treasurer and Zoning Administrator for Greenfield Township, you are a public official /public employee as those terms are defined in the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. As a Supervisor for Greenfield Township, Magoon is a public official as that term is defined in the Ethics Act. Hence, you and Magoon are subject to the provisions of that Act. Wild Side Performance, a business that your husband owns, is a business with which he is associated. Colt Station Restaurant, a business that Supervisor Magoon co -owns, is a business with which he is associated. Pursuant to Section 1103(a) of the Ethics Act, you would be prohibited from using the authority of your office as Township Secretary/Treasurer and Zoning Administrator or confidential information for the private pecuniary benefit of yourself, your husband or Wild Side Performance. Magoon would be prohibited form using the authority of his office as Township Supervisor or confidential information for the private pecuniary benefit of himself or Colt Station Restaurant. If a matter would come before you in your official capacity as Secretary/Treasurer or Zoning Administrator that would result in a financial gain to you, your husband or Wild Side Performance, you would have a conflict under Section 1103(a) of the Ethics Act. Similarly, if a matter would come before the Board of Supervisors that would result in a financial gain to Magoon or Colt Station Restaurant, Magoon would have a conflict under Section 1103(a) of the Ethics Act. In each instance of a conflict, you and Magoon would be required to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act. As detailed above, the submitted facts do not establish with any certainty that a use of authority of office by you or Magoon will result in a pecuniary benefit to either Colt Station Restaurant or Wild Side Performance if the speedway is developed. Based upon prior precedent and conditioned upon the assumption neither you nor Magoon has a financial interest in Lake Erie, the speedway, or the property on which the speedway will be built, you and Supervisor Magoon would not have a conflict of interest as to participating in matters involving the proposed development of the speedway. 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. Wagner /Magoon, 01 -501 January 4, 2001 Page 8 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 §13.2(h). 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