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HomeMy WebLinkAbout01-502 ReedIrene Reed P.O. Box 358 Leesport, PA 19533 Dear Ms. Reed: ADVICE OF COUNSEL January 4, 2001 01 -502 Re: Conflict; Public Official /Employee; Township; Supervisor; Development of Property Adjacent to Supervisor's Property; Participation in Board Action Concerning Preliminary Plan. This responds to your letter of November 28, 2000, in 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 as to participating in action of the board of supervisors with regard to a preliminary plan for the development of land that is adjacent to property owned by the supervisor. Facts: You are a Supervisor in Bern Township, Berks County, Pennsylvania where you and your husband reside. A developer owns property adjacent to your property, which he now plans to develop. You state that neither you nor your family has any business or financial interest in the developer or his projects. The preliminary plan for the development will soon be presented to the Bern Township Planning Commission and will eventually come before the Board of Supervisors. When the preliminary plan comes before the Board, you ask whether you may: 1) vote on the plan; 2) ask questions about or offer comments regarding the plan; 3) ask questions or vote on issues related to the proposed development, such as sewage, water, Act 537, traffic, and storm water issues; and 4) ask questions about the proposed development's impact on the surrounding area. 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 Reed, 01 -502 January 4, 2001 Page 2 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 Supervisor for Bern Township, 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. 65 Pa.C.S. §1102. "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. "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. Reed, 01 -502 January 4, 2001 Page 3 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. 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 Ethics Act defines "immediate family" as "a parent, spouse, child, brother or sister." If participating in Board action as to the preliminary plan would result in a Reed, 01 -502 January 4, 2001 Page 4 financial benefit to you, a member of your immediate family, or a business with which you or a member of your immediate family is associated, you would have a conflict as to the preliminary plan and could not participate as to that plan. Hence, you would be prohibited from voting, discussing, conferring with others, lobbying for a particular result or engaging in other uses of authority of office. This is true because the use of authority of office encompasses all of the tasks needed to perform the functions of a given position. See, Juliante, Order 809. Further, you would be required to observe the disclosure requirements of Section 1103(j) of the Ethics Act. Having established the above principles, if a public official has a conflict under the Ethics Act, there are two exclusions that may apply in certain instances: the de minimis exclusion and the class /subclass exclusion. The de minimis exclusion would not apply since the preliminary plan would not have an economic consequence that would be insignificant. As to whether the class /subclass exclusion to the statutory definition of "conflict of interest" would apply, only general guidance may be given. In order for the class /subclass exclusion to apply, you, a member of your immediate family, or a business with which you or a member of your immediate family is associated would have to be in a class /subclass consisting of more than one person and be affected to the same degree as other members of the class /subclass. In such a situation, Section 1103(a) would not prohibit you from participating in a matter even if such matter would result in a financial benefit, provided that such action would impact upon to you, a member of your immediate family, or a business with which you or a member of your immediate family is associated to the same degree as all of the other members of the class /subclass. Based upon the above, in order for the class /subclass exclusion to apply, your property would have to be affected in value to the same degree as all other property owners in the class /subclass. Such a determination could only be made through a comparison of real estate appraisals of the affected properties. However, since you have not presented any appraisals with your request, it is not possible to speculate as to the impact of the preliminary plan on the value of your property and to what extent you and your husband would be affected as compared to other members of the class /subclass. In Laser, Opinion 93 -002, which involved a township supervisor who resided next to property that was subject to a proposed development, the Commission considered whether the supervisor would have a conflict of interest under Section 3(a) of the Ethics Law so as to prohibit his participation in matters pertaining to the development, or whether he would fall within the class /subclass exclusion. The Commission held that in the absence of appraisals, a determination could not be made as to whether the value of the supervisors property would be affected to the same degree as that of all other property owners in the class /subclass. Because the impact upon the value of the property in question was speculative due to a factual insufficiency, the Commission did not (and could not) reach a conclusion as to whether a conflict existed. Since a factual insufficiency exists in the instant matter, this Advice is necessarily limited to providing the above general guidance. 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 Supervisor for Bern 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. If participating in Board action as to the preliminary plan would result in a financial benefit to you, a member of your immediate family, or a business Reed, 01 -502 January 4, 2001 Page 5 with which you or a member of your immediate family is associated, you would have a conflict under Section 1103(a) of the Ethics Act and could not participate as to that plan. Further, you would be required to observe the disclosure requirements of Section 1103(j) of the Ethics Act. If you would have a conflict based upon a pecuniary benefit consisting of an increase in the value of your property, the class /subclass exclusion to the statutory definition of "conflict of interest" would apply only if your property would be affected to the same degree as all the properties in the class /subclass. Real estate appraisals would be necessary to determine whether your property would, in fact, be affected to the same degree. 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 §13.2(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