Loading...
HomeMy WebLinkAbout01-568 ColbyDale Colby Mt. Lebanon Municipal Building 710 Washington Road Pittsburgh, PA 15228 ADVICE OF COUNSEL June 29, 2001 01 -568 Re: Conflict; Public Official /Employee; Municipality; Home Rule; Commissioner; Mt. Lebanon Soccer Foundation; Youth Sports Alliance of Mt. Lebanon, Inc.; Mt. Lebanon Soccer Association; Non - profit youth sports organizations; Request for Rezoning; Zoning Amendment; Vote. Dear Mr. Colby: This responds to your letter of June 1, 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 a commissioner as to participating in municipal commission actions involving proposed amendments to the zoning ordinance when the commissioner has, in the past, served as a treasurer and a member of the board of directors of a non - profit youth sports organization whose efforts to develop property as a multipurpose recreational facility would be affected by the proposed amendments. Facts: You are a Commissioner in Mt. Lebanon, Allegheny County, having been elected to office on April 4, 2000 and installed as a Commissioner on May 8, 2000. The Commission is designated as the governing body pursuant to Mt. Lebanon's Home Rule Charter. Prior to your election as Commissioner, you served on several different organizations. First, you served as Treasurer and a member of the Board of Directors of the Mt. Lebanon Soccer Foundation ( "MLSF "). Second, you served as President and a member of the Board of Directors of the Youth Sports Alliance of Mt. Lebanon, Inc. ("YSA"). Third, you held various officer positions on the Mt. Lebanon Soccer Association ( "MLSA "). You state that the MLSF and YSA are both local non - profit youth sports organizations. After being elected Commissioner, you resigned from your positions on both the MLSF and YSA. Since your resignations, however, the Mt. Lebanon Commission has Colby, 01 -568 June 29, 2001 Page 2 appointed you as its liaison to YSA. Further, you have acted as a voluntary chairman for a weekend workshop on good sportsmanship for coaches, parents and sports organization leaders. Since 1998, the MLSF has been active in efforts to develop a piece of property in Mt. Lebanon as a multipurpose recreational facility for public use. The MLSF received title to the property through a donation in December 1998. The property is currently zoned R -1, Residential. In May 2000, the MLSF requested that Mt. Lebanon rezone the property as P -2, Diversified Park District. Upon review of MLSF's request, Mt. Lebanon's staff and Planning Board recommended against the rezoning and instead recommended that the Planning Commission consider a "text amendmenr to the zoning ordinance authorizing the use of private parks for public use as a conditional use in the R -1 and R -2 residential districts. The proposed zoning ordinance text amendment is currently before the Commission. Opponents of the amendment have submitted a document entitled, "Petition for Recusal Raising Conflicts of Interest of Commissioner Dale Colby." The Petition for Recusal requests that you voluntarily recuse yourself and abstain from participating on the proposed amendments, any related matters such as zoning for parks, athletic fields and the financing and operation of such parks, athletic fields in Mt. Lebanon while you are a Commissioner. The stated reasons for the Petition for Recusal are your former positions with MLSA, MLSF and YSA and your continuing interest in and support for youth sports in Mt. Lebanon. You state that should the Commission adopt the proposed amendments, neither you nor any member of your immediate family would obtain any private pecuniary benefit. 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 Commissioner for Mt. Lebanon, 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 Colby, 01 -568 June 29, 2001 Page 3 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. "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. "Financial interest." Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. 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 Colby, 01 -568 June 29, 2001 Page 4 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. Having established the above principles, your specific inquiry shall now be addressed. MLSF, a non - profit youth sports organization, is a "business" as that term is defined in the Ethics Act. First, the definition of the term "business" as set forth in the Ethics Act is very broad. Novak, Opinion No. 91 -009. As an "organization," MLSF clearly falls within that definition. econd, the fact that MLSF is a non - profit organization would not disqualify it as a "business." The word "or" toward the end of the definition of "business" is disjunctive, and the repeated use of the word "any" precludes any interpretation that the final phrase "legal entity organized for profit" modifies the preceding forms of entities in the list. See, Soltis-Sparano, Order No. 1045 at 31 (Citing, Confidential Opinion, No. 89 -007; McConahy, Opinion No. 96 -006). Although MLSF qualifies as a "business," it is not a business with which you or a member of your immediate family is associated. This conclusion is based upon your express factual statement that you have resigned as Treasurer and member of the Board of Directors of MLSF. Thus, it is factually assumed for purposes of this Advice that neither you nor a member of your immediate family is a director, officer, owner, employee of MSLF or has a financial interest in that organization. In that MSLF is not a business with which you or a member of your immediate family is associated, you would not have a conflict as to participating in matters pertaining to MSLF's zoning request /proposed zoning ordinance amendment. As for future issues Colby, 01 -568 June 29, 2001 Page 5 before the Commission involving parks and athletic fields in Mt. Lebanon, you would not be prohibited from participating on such matters absent a use of authority of office that would result in a private pecuniary benefit to you, an immediate family member or a business with which you or a member of your immediate family is associated. 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 Commissioner for Mt. Lebanon, 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. Mt. Lebanon Soccer Foundation ( "MLSF "), a non - profit organization, is a "business" as that term is defined in the Ethics Act. However, in that neither you nor a member of your immediate family is a director, officer, owner, employee of MSLF or has a financial interest in that organization, it is not a business with which you or a member of your immediate family is associated. Hence, you would not have a conflict as to participating in matters pertaining to MSLF's zoning request /proposed zoning ordinance amendment. As for future issues before the Commission involving parks and athletic fields in Mt. Lebanon, you would not be prohibited from participating on such matters absent a use of authority of office that would result in a private pecuniary benefit to you, an immediate family member or a business with which you or a member of your immediate family is associated. 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