Loading...
HomeMy WebLinkAbout01-577 PratherLinda R. Prather 11573 Station Road North East, PA 16428 Dear Ms. Prather: ADVICE OF COUNSEL July 26, 2001 01 -577 Re: Conflict; Public Official /Employee; Township; Zoning Hearing Board; Alternate Board Member; Appeal; Donation. This responds to your letter received on June 26, 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 member of a township zoning hearing board as to participating in a zoning hearing appeal involving a developer who may possibly make a donation to a restoration society of which the member is vice - president. Facts: On October 2, 2000, Greenfield Township adopted a rezoning ordinance permitting Lake Erie Promotions to construct an oval paved racetrack to be known as Lake Erie Speedway. Because some of the current zoning board members had recused themselves, other citizens of Greenfield Township, including you, were asked to become alternate members of the Greenfield Township Zoning Hearing Board. Since November 22, 2000, you have served as an alternate member of the Zoning Hearing Board. On October 30, 2000, an appeal to the Zoning Hearing Board was filed by the Greenfield Good Neighbors Group ("GGNG"). On November 28, 2000, the Zoning Hearing Board heard Zoning Hearing Appeal 2000 -1. You have enclosed a copy of Appeal 2000 -1, which is incorporated herein by reference. At the hearing, you were interviewed by the attorney for GGNG, Richard Ruth, Esquire, as to your qualifications and interests in the matter before the Board. You admitted that you were a founding member and are currently Vice - President of the Hornby School Restoration Society. You state that the purpose of the Hornby School Restoration Society is to restore and maintain a former one -room school house, the Hornby School, as a museum. The museum is a non - profit entity existing on donations and fund raising activities. At this time, the museum is self- supporting. Prather, 01 -571 July 26, 2001 Page 2 Because the museum was mentioned as a possible recipient of a donation from Lake Erie Promotions, and because of your association with the museum, Attorney Ruth is seeking to have you removed from the Zoning Hearing Board. You state that although a possible donation from Lake Erie Promotions would be nice, it is not essential. You state that you have been a member of the Greenfield Township community for over 30 years and have been a teacher in that community for 32 years. You feel you are highly qualified to listen to testimony and make an informed, unbiased decision. You seek advice as to whether the possibility of the Hornby School museum receiving a donation from Lake Erie Promotions would create a conflict of interest that would preclude you from serving as an alternate member of the Greenfield Township Zoning Hearing Board. 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 an alternate member of the Zoning Hearing Board for Greenfield 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. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to Prather, 01 -571 July 26, 2001 Page 3 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. "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 Prather, 01 -571 July 26, 2001 Page 4 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. Given the Ethics Act's broad definition of the term "business," it is clear that the Hornby School Restoration Society is a "business" with which you, as its Vice - President, are associated. Further, the Hornby School Museum, which you characterize as a "non- profit entity," is also a "business" with which you are associated, assuming it is one in which you or a member of your immediate family is a director, officer, owner, employee or has a financial interest. First, as stated above, the definition of the term "business" as set forth in the Ethics Act is very broad. Novak, Opinion No. 91 -009. The Hornby School Museum would at least be an "organization" within that definition. Second, the fact that the museum 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; Mc Opinion No. 96 -006). Since the Hornby School Museum is a "business" as that term is defined in the Ethics Act, it is a business with which you are associated, assuming it is one in which you or a member of your immediate family is a director, officer, owner, employee or has a financial interest. Pursuant to Section 1103(a) of the Ethics Act, you would be precluded from participating in matters before the Zoning Hearing Board that would result in a financial gain to yourself, the Hornby School Restoration Society or the Hornby School Museum, assuming the latter is a business with which you are associated. In each instance of a conflict, you would be required to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act. As to whether you would have a conflict because the museum may receive a donation from the developer, based upon the facts that you have submitted, you would not have a conflict as to participating in matters involving the Lake Erie Promotions. This conclusion is based upon the Commission's decision in Armstrong, Opinion 97 -001, which involved a township supervisor who, in his private capacity, was the principal shareholder of a heating and air conditioning company. The supervisor's company submitted a bid to a general contractor to perform renovation work on an office building owned by a major landowner in the township. The company was awarded the subcontract for heating and air conditioning work as the low bidder. Subsequently, the landowner brought matters before the township board of supervisors unrelated to the renovation project. The issue was whether the supervisor would have a conflict in matters involving the landowner because of his work for the general contractor on the building owned by the landowner. The Commission noted that there was a business relationship between the supervisor and the landowner by virtue of the renovation subcontract. However, the Commission stated that the business relationship was not a direct one because first, the building owner retained the general contractor who awarded the contract to the supervisor's company as the low bidder; and second, the matter that was pending before the township involved an issue unrelated to the building renovation Prather, 01 -571 July 26, 2001 Page 5 project. The Commission noted that although the certainty of financial gain is not required to establish a conflict, the interest cannot be considered to be remote. The Commission then found no conflict as to the supervisor's participation in matters before the township unrelated to the renovation project. Further, the Commission has held that a (political) contribution to a candidate's campaign, without any additional facts, is insufficient to establish a conflict. See, Wolfgang, Opinion 89 -028. In the instant case, it appears the connection between the museum and Lake Erie Promotions is even more attenuated than the business relationship in Armstrong, supra. Further, the fact that the museum may receive a donation from Lake Erie Promotions does not create a conflict of interest where the submitted facts fail to establish that you, the Hornby School Restoration Society, or the Hornby School Museum will financially benefit from your participation as a Zoning Hearing Board Member. Finally, even if a conflict would exist, the Ethics Act would not require you to resign from your position as an alternate member of the Zoning Hearing Board. 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 an alternate member of the Greenfield Township Zoning Hearing Board, 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. The Hornby School Restoration Society is a "business" with which you, as its Vice- President, are associated. Further, the Hornby School Museum, a "non- profit entity," would also be a "business" with which you are associated, assuming it is one in which you or a member of your immediate family is a director, officer, owner, employee or has a financial interest. Pursuant to Section 1103(a) of the Ethics Act, you would be precluded from participating in matters before the Zoning Hearing Board that would result in a financial gain to yourself, the Hornby School Restoration Society or the Hornby School Museum, assuming the latter is a business with which you are associated. In each instance of a conflict, you would be required to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act. The fact that the museum may receive a donation from Lake Erie Promotions does not create a conflict of interest where the submitted facts fail to establish that you, the Hornby School Restoration Society, or the Hornby School Museum will financially benefit from your participation as a Zoning Hearing Board Member. You would not be required to resign from your position as an alternate member of the Zoning Hearing Board. 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. Prather, 01 -571 July 26, 2001 Page 6 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(hh). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or byy 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