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HomeMy WebLinkAbout01-595 RathbunDavid S. Rathbun 472 Crescent Drive West Chester, PA 19382 ADVICE OF COUNSEL October 17, 2001 01 -595 Re: Conflict; Public Official /Employee; Township; Supervisor; Resident; Business With Which Associated. Dear Mr. Rathbun: This responds to your letter of September 11, 2001, by which you requested advice from the State Ethics Commission. Issue: Whether, pursuant to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., a township supervisor would have a conflict of interest as defined by the Ethics Act in matters before the board of supervisors involving a township resident or businesses with which the township resident is associated, where the supervisor has, in a letter to the township voters, expressed opposition to certain written statements made by the township resident to various township voters. Facts: As a Supervisor for Birmingham Township ( "Township "), you seek an advisory from the State Ethics Commission. You have submitted facts which may be fairly summarized as follows. In the May 15, 2001, primary election, you sought re- election to the office of Township Supervisor on the Republican ticket. Shortly before the primary, a letter dated May 7, 2001, was sent by Township residents Victor and Lily Leonhard (the "Leonhards ") to various Republican voters within the Township. You have submitted a copy of the said letter, hereinafter referred to as "the Leonhard letter," which is incorporated herein by reference. You state that the Leonhard letter questioned the fiscal policies of the Township, the propriety of certain land use ordinances enacted by the Township, and the payment by the Township of legal fees to the Township Solicitor, and accused the Supervisors of selling changes to Zoning Ordinances. On May 14, 2001, you sent a letter to the Township citizens responding to the Leonhard letter. You have submitted a copy of your said letter, hereinafter referred to as "the Rathbun letter," which is incorporated herein by reference. The Rathbun letter Rathbun, 01 -595 October 17, 2001 Page 2 pointed out what you perceived to be inaccuracies in the Leonhard letter, as well as possible political motives behind it. Thereafter, the Leonhards' attorney wrote to you, your attorney responded, and the Leonhards' attorney wrote to the Supervisors requesting that effective August 8, 2001, you recuse yourself from matters before the Board of Supervisors pertaining to Mr. Leonhard, the Leonhards jointly, and /or certain entities for which Mr. Leonhard serves as Secretary, specifically, "Brandywine Development Corporation" and "The Friends of Dilworthtown." Subsequently, the Township Solicitor and the Leonhards' attorney exchanged letters as to whether you would have a conflict of interest requiring recusal from matters pertaining to the Leonhards or the aforesaid entities. The assertions made by the Leonhards' attorney in his aforesaid letters pertained to allegations of libelous statements, invasion of privacy, and the casting of the Leonhards in a false light. The demand for your recusal was based upon contentions that you demonstrated animus towards Mr. Leonhard and that your objectivity and neutrality concerning Mr. Leonhard were impaired. All of the aforesaid letters which you have submitted are incorporated herein by reference. You state that you maintain no animus towards Mr. Leonhard or any organization with which he claims to be associated, and that it is your position that you are in no way impaired from fairly and ethically discharging your duties as a member of the Board of Supervisors. You further state that it is your desire to continue to serve the Township residents, which goal would be impaired should you recuse yourself as Mr. Leonhard has demanded. You state that in this case, there is no element of financial gain through public office /public employment, and that you therefore do not have a conflict of interest as defined by the Ethics Act. However, in an effort to resolve this matter, you request an advisory from the State Ethics Commission as to whether, based upon the submitted facts, you would have a conflict of interest under the Ethics Act in matters before the Township Board of Supervisors involving Mr. Leonhard, the Leonhards jointly, Brandywine Development Liquidation Corporation, and /or The Friends of Dilworthtown. 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 Township Supervisor, you are a public official subject to the provisions of the Ethics 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. Rathbun, 01 -595 October 17, 2001 Page 3 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. 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). Rathbun, 01 -595 October 17, 2001 Page 4 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. The above provisions of the Ethics Act shall now be applied to your inquiry. Subject to certain exceptions delineated in the definition of "conflict" or "conflict of interest" above, it is a conflict of interest under Section 1103(a) of the Ethics Act for a public official /public employee to use 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 definition of "conflict" or "conflict of interest" as set forth in the Ethics Act does not encompass alleged animus or bias where the element of a prohibited private pecuniary benefit is lacking. In applying the above elements to the facts which you have submitted, you are advised that you would not have a conflict of interest under the Ethics Act with regard to matters before the Township Board of Supervisors involving Mr. Leonhard, the Leonhards jointly, Brandywine Development Liquidation Corporation, and /or The Friends of Dilworthtown, because one of the requisite elements for a conflict of interest under the Ethics Act would not be established. Specifically, there would be no private pecuniary benefit to you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. This Advice is expressly conditioned upon the assumption that neither you nor a member of your immediate family is a director, officer, owner, or employee of Brandywine Development Liquidation Corporation or The Friends of Dilworthtown, or has a financial interest in either of those entities. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of the common law or any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered. Specifically not addressed herein is the applicability of the Second Class Township Code. Conclusion: As a Supervisor for Birmingham Township ( "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. Under the submitted facts, you would not have a conflict of interest under the Ethics Act with regard to matters before the Township Board of Supervisors involving Township Resident Victor Leonhard, Victor Leonard and his wife Lily Leonhard jointly, Brandywine Development Liquidation Corporation, and /or The Friends of Dilworthtown, because there would be no private pecuniary benefit to you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. This Advice is conditioned upon the assumption that neither you nor a member of your immediate family is a director, officer, owner, or employee of Brandywine Development Liquidation Corporation or The Friends of Dilworthtown, or has a financial interest in either of those entities. 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. Rathbun, 01 -595 October 17, 2001 Page 5 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