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HomeMy WebLinkAbout02-526 ReevesBobbi Reeves, Commissioner Upper Pottsgrove Township 1876 Laura Lane Pottstown, PA 19464 Dear Ms. Reeves: ADVICE OF COUNSEL March 4, 2002 02 -526 Re: Conflict; Public Official /Employee; Township; Commissioner; Party to Litigation Against Developer; Participating in Matters Before the Board Involving Developer. This responds to your letter of January 30, 2002, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 a.C.S. § 1101 et seq., presents any prohibition or restrictions upon a township commissioner participating in or voting on matters involving a developer when the commissioner is involved in litigation with the developer pertaining to a parcel adjacent to the commissioner's home. Facts: You are currently an Upper Pottsgrove Township Commissioner, having taken the oath of office on January 7, 2002. In 1996, you purchased a home in the Cherry Tree Development in Upper Pottsgrove Township ( "Township "). At that time, you obtained a copy of the Township Map to obtain information about adjacent properties. Approximately, two years ago, Richard Mingey "Mingey "), a developer, presented a new plan to the Upper Pottsgrove Board of Commissioners for "Westbrook," a parcel located near your home. You state that there is a question as to whether Westbrook is zoned R -2 or R -3. In that you had a number of concerns regarding Westbrook, you hired an attorney. You are now a party in the litigation against Woodbrook. Based upon the advice of the Township Solicitor, you state that you will recuse yourself from any discussions and votes regarding Woodbrook. You ask whether you would violate the Ethics Act if you would participate in any discussions and votes pertaining to other properties within the Township that are unrelated to Woodbrook, but are owned or under the control of Mingey. Reeves, 02 -526 March 4, 2002 Page 2 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 Upper Pottsgrove 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 the performance of duties and responsibilities unique to a particular public office or position of public employment. 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. Reeves, 02 -526 March 4, 2002 Page 3 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. Under Act 170 of 1978, the State Ethics Commission held that when a public official is involved in litigation, matters involving or affecting that litigant do present a conflict of interest for the public official. See, DeLano, Opinion 88 -008 (wherein the Commission held that a township supervisor had a conflict as to voting or participating in matters relating to a proposed landfill when the supervisor belonged to a citizens group, which was in litigation as to an existing incinerator on the site of the proposed landfill, and when the incinerator was operated by the same owners of the landfill). Furthermore, the State Ethics Commission held that a public official has an inherent conflict of interest in matters pertaining to an entity when he is a litigant against that entity. See, Golla, Opinion 88 -004 (wherein the Commission held that a borough council member had a conflict of interest as to all matters involving a water authority when the Reeves, 02 -526 March 4, 2002 Page 4 council member in his private capacity was involved in litigation against the water authority). See, also, Perino, Advice 95 -503. These decisions would hold true under Act 9 of 1989 as codified by Act 93 of 1998. Perino, supra. Based upon Commission precedent, given that Mingey is presumably an adverse party to the litigation relating to Woodbrook, and the litigation is of a personal nature and not related to any official action by you as a Township Commissioner, you would generally have a conflict of interest as to all matters before the Township Board of Commissioners involving Mingey. 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 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 Upper Pottsgrove 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. Given that Mingey is presumably an adverse party to the litigation relating to Woodbrook, and the litigation is of a personal nature and not related to any official action by you as a Township Commissioner, you would generally have a conflict of interest as to all matters before the Township Board of Commissioners involving Mingey. 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. 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