HomeMy WebLinkAbout01-516 KrachtMichael D. Kracht, Esquire
Weber, Kracht & Chellew
847 West Market Street
P.O. Box 258
Perkasie, PA 18944
Dear Kracht:
ADVICE OF COUNSEL
February 14, 2001
01 -516
Re: Conflict; Public Official /Employee; Borough; Council Member; Vote; Water Line
Extension; Members Owning Properties In Area of Water Line Extension.
This responds to your letter of January 11, 2001, 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 borough council
members as to participating in council actions regarding a public water service extension
plan when the council members own properties in the area to be serviced.
Facts: As Solicitor for Dublin Borough, you request an advisory on behalf of the
following Council Members: Robert S. Carlson ( "Carlson "), Beverlee Hillman ( "Hillman "),
Russell Rodgers ( "Rodgers "), and Tina Supplee ("Supplee").
A significant number of homes in Dublin Borough, including the homes owned by
the four Council Members named above, are not served by public water. Council intends
to consider a plan to extend public water throughout the remainder of the Borough so that
all Borough residents will be served by public water. You state that the individuals who
would receive public water under the plan would probably be asked to cover some of the
costs.
Given the foregoing facts, you ask whether Carlson, Hillman, Rodgers and Supplee
would have a conflict and be required to abstain from deliberating and voting on the public
water service extension plan.
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
Kracht, 01 -516
February 14, 2001
Page 2
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 Members of the Dublin Borough Council, Carlson, Hillman, Rodgers, and
Supplee are public officials as that term is defined in the Ethics Act, and hence they 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.
65 Pa.C.S. §1102.
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.
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:
Kracht, 01 -516
February 14, 2001
Page 3
$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. If a matter would come before Dublin Borough Council
that would result in a financial gain to Carlson, Hillman, Rodgers, or Supplee, a member of
their immediate families, or a business with which they or a member of their immediate
families is associated, they would have a conflict and be required to abstain and observe
the disclosure requirements of Section 1103(j) of the Ethics Act as set forth above.
Having established the above general principles, your inquiry shall now be
addressed. Carlson, Hillman, Rodgers, and Supplee, who own their residences in the area
that would be affected by the water service extension plan, would have a conflict as to
such plan if connecting to the public water system would increase the values of their
properties. In such a case, Carlson, Hillman, Rodgers, and Supplee would be required to
abstain from participating in Board action as to the plan because such participation would
result in a private pecuniary benefit to them. The abstention requirement would extend to
voting, discussing, deliberating, conferring with others, lobbying for a particular result or
Kracht, 01 -516
February 14, 2001
Page 4
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, Carlson, Hillman, Rodgers, and Supplee would be
required to observe the disclosure requirements of Section 1103(j) of the Ethics Act.
Assuming that connecting to the public water system would increase the value of
the properties owned Carlson, Hillman, Rodgers, and Supplee and any participation by
them would result in a private pecuniary benefit, they would nonetheless be permitted to
participate in Board action if either of the following would apply: the de minimis exclusion
under Section 1103(a), the class /subclass exclusion under Section 1103(a), or the voting
exception under Section 1103(j).
As to the Section 1103(a) exclusions, the de minimis exclusion would not apply
since the water service extension 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, Carlson, Hillman, Rodgers, or
Supplee, a member of their immediate families, or a business with which they or a member
of their immediate families 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 Carlson, Hillman,
Rodgers, or Supplee from participating in a matter even if such matter would result in a
financial benefit, provided that such action would impact upon them, a member of their
immediate families, or a business with which they or a member of their immediate families
is associated to the same degree as all of the other members of the class /subclass.
Applying the above to the instant matter, the properties owned by Carlson, Hillman,
Rodgers, and Supplee 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 determine as to
the impact of the public water service extension plan upon the value of the properties
owned by Carlson, Hillman, Rodgers, and Supplee and to what extent they 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
supervisor's 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, as it pertains to the class /subclass exclusion under
Section 1103(a) of the Ethics Act, is necessarily limited to providing the above general
guidance.
Even if the class /subclass exclusion under Section 1103(a) of the Ethics Act would
be inapplicable, Carlson, Hillman, Rodgers, and Supplee would be permitted to vote if they
would comply with the requirements of Section 1103(j) of the Ethics Act. It is noted that
Dublin Borough is apparently comprised of seven council members, of whom four may
have conflicts under the Ethics Act. Mlakar, supra, makes it clear that it is only when the
governmental body is unable to take official action because the majority or other legally
required vote is unattainable due to the number of members required to abstain, that such
abstaining members will be permitted to vote if proper disclosures are made. Thus in the
Kracht, 01 -516
February 14, 2001
Page 5
case of the Dublin Borough Council, a seven - member board, four Council Members would
have to have a conflict under the Ethics Act in order to make the majority or other legally
required vote "unattainable." Assuming Carlson, Hillman, Rodgers, and Supplee would
have a conflict based upon an increase in property values, in such an instance, the
majority or other legally required vote would be "unattainable" and therefore, they would be
permitted to vote if proper disclosures would be made under the voting exception of
Section 1103(j) of the Ethics Act.
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 Members of the Dublin Borough Council, Robert S. Carlson
" Carlson "), Beverlee Hillman ( "Hillman "), Russell Rodgers ( "Rodgers "), and Tina Supplee
" Supplee") are public officials subject to the provisions of the Public Official and Employee
thics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. Pursuant to Section 1103(a) of the
Ethics Act, if a matter would come before Dublin Borough Council that would result in a
financial gain to Carlson, Hillman, Rodgers, or Supplee, a member of their immediate
families, or a business with which they or a member of their immediate families is
associated, they would have a conflict and be required to abstain and observe the
disclosure requirements of Section 1103(j) of the Ethics Act as set forth above.
Carlson, Hillman, Rodgers, and Supplee, who own their residences in the area that
would be affected by the water service extension plan, would have a conflict as to such
plan if connecting to the public water system would increase the value of their properties.
In such a case, Carlson, Hillman, Rodgers, and Supplee would be required to abstain from
participating in Board action as to the plan because such participation would result in a
private pecuniary benefit to themselves.
Assuming Carlson, Hillman, Rodgers, and Supplee would have a conflict based
upon an increase in the value of their properties, they could participate in Board action as
to the public water service extension plan if they would 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. Real estate appraisals would be necessary to determine whether the
properties owned by Carlson, Hillman, Rodgers, and Supplee would, in fact, be affected to
the same degree.
Even if the class /subclass exclusion would be inapplicable, Carlson, Hillman,
Rodgers, and Supplee would be permitted to vote if they would comply with the
requirements of Section 1103(j) of the Ethics Act. In the case of the Dublin Borough
Council, a seven - member council, four Council Members would have to have a conflict
under the Ethics Act in order to make the majority or other legally required vote
"unattainable." Assuming that Carlson, Hillman, Rodgers, and Supplee would have a
conflict as to the plan, they would be permitted to vote if proper disclosures would be made
under the voting exception of Section 1103(j) of the Ethics Act.
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.
Kracht, 01 -516
February 14, 2001
Page 6
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