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HomeMy WebLinkAbout02-564 CloneyJeffrey L. Rehmeyer, II, Esquire CGA Law Firm 29 N. Duke Street York, PA 17401 -1282 Dear Mr. Rehmeyer: ADVICE OF COUNSEL May 31, 2002 02 -564 Re: Conflict; Public Official /Employee; Township Supervisor; Comprehensive Plan; Zoning, Subdivision and Land Development Ordinances; Private Pecuniary Benefit; De Minimis Economic Impact; Class /Subclass Exclusion. This responds to your letters of April 18, 2002, and April 26, 2002, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Ha.G.S. § 1101 et seq., presents any prohibition or restrictions upon a township supervisor as to participating in the township's revisions of the comprehensive plan and zoning, subdivision and land development ordinances when the supervisor owns 126 acres of land in the township which may be affected by the revisions. Facts: As Solicitor for the Township of Hellam in York County, Pennsylvania ownship "), you seek an advisory on behalf of Richard M. Cloney ( "Cloney "), a Township Supervisor. You have submitted facts, which may be fairly summarized as follows. Cloney owns approximately 126 acres of land in the Township with improvements consisting of a restored farm house, barn, and related outbuildings. The land, which Cloney has owned since 1978, is devoted primarily to agricultural uses. Prior to 1996, all 126 acres of Cloney's land were zoned agricultural. Under the comprehensive plan and zoning and land development ordinances then in effect, Cloney potentially could have subdivided his property into 84 lots with each lot consisting of one and one -half acres. In 1996, the Township enacted a new comprehensive plan and new zoning, subdivision and land development ordinances, which are still in effect. You state that substantial controversy surrounded the 1996 comprehensive plan and related ordinances since they severely limited the ability of any land owner to subdivide his or Rehmeyer /Cloney 02 -564 May31, 2002 Page 2 her property. The 1996 enactments provided the impetus for Cloney and others to run for the office of Township Supervisor. Cloney's platform for his election promoted smart growth and discouraged ordinances that were unduly restrictive. Pursuant to the 1996 comprehensive plan and related ordinances, 100 acres of Cloney's land were zoned agricultural and 26 acres were zoned rural conservation. The 100 acres of land now zoned agricultural may potentially be subdivided into five parcels based upon a "sliding scale" formula. You state, "The particular formula in the zoning ordinance allowed [Cloney] five new principle uses, plus one use for each of the thirty (30) acres over sixty (60) acres, then subtracting one in the existing principle residential use, which was his home." The 26 acres of land now zoned rural conservation may potentially be subdivided into five parcels, given that the 1996 ordinances permit one lot per five acres. In total, Cloney may subdivide his 126 acres into a maximum of 10 lots. The Township Board of Supervisors is currently in the process of reviewing the 1996 comprehensive plan. At a later time, the Board will address the zoning and subdivision and land development ordinances. The Board has prepared a revised comprehensive plan, which has been reviewed on numerous occasions by the Township Planning Commission and the York County Planning Commission. The York County Planning Commission has determined that the proposed comprehensive plan is generally consistent with the York County Comprehensive Plan. The Board of Supervisors has scheduled a public hearing on the proposed comprehensive plan for May 9, 2002. In addition, the Board of Supervisors is reviewing the Act 537 Plan, which addresses matters involving sewage within the Township. You state at this stage in the process, it appears that the Act 537 Plan will mandate that new development on lots that do not have public sewer shall consist of a lot size of no less than two acres. Therefore, any change in the ordinances will not permit Cloney the opportunity to subdivide his land into as many parcels as he could have in 1995 and, in fact, may allow for even fewer lots. Assuming Cloney would choose to subdivide his property, you argue that any potential pecuniary benefit to him would, at most, be a return of a portion of the rights that existed before the 1996 comprehensive plan and accompanying ordinances were enacted. You contend that it is unlikely that any of the land use ordinances implemented by the Board would place Cloney or other individuals owning property in the agricultural zone in a better position than they were prior to 1996. In support of your argument, you state that the Township consists of 17,121 acres of land. Under the proposed comprehensive plan, 15,209 acres or 88.8% would be zoned rural /agricultural. Of those 15,209 acres, Cloney currently owns 126 acres or .82% of the total land. The remaining 15,083 acres of land in the rural /agricultural zone are owned by property owners other than Cloney. Considering the percentage of land owned by Cloney, you maintain that any Board action with respect to the comprehensive plan or future ordinances would not constitute a conflict of interest. Notwithstanding Cloney's potential to subdivide his property prior to 1996, you state that there is a possibility that a change in the current comprehensive plan and zoning could result in a pecuniary benefit, but that benefit would likely be de minimis, especially in light of the prior subdivision possibilities for his property. You argue that any change in the comprehensive plan and related ordinances would affect a large majority of the property owners in the Township given the 15,083 remaining acres that would be zoned rural /agricultural. Cloney, you maintain, would be Rehmeyer /Cloney 02 -564 May31, 2002 Page 3 a member of a class consisting of either the general public or a subclass consisting of all landowners who own property that may be zoned rural /agricultural. You conclude that no action by Cloney with regard to revising the comprehensive plan and changing the related ordinances could result in a substantial and individualized financial benefit to your client. However, you seek guidance from the State Ethics Commission in light of the fact that a complaint arising out of the Township's review process was filed with the State Ethics Commission against Cloney alleging a violation of Section 3(a) of the Ethics Act. You state that in a letter dated February 5, 2002, the Commissions Executive Director indicated that the Commission found no basis to commence a full investigation due to insufficient evidence to support a finding of probable cause that the Ethics Act had been violated, but warned that there was a potential for a future conflict due to Cloney's real estate holdings. You request an advisory regarding Cloney's actions concerning the revisions to the comprehensive plan and related ordinances. 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 Supervisor for Hellam Township, Richard M. Cloney ( "Cloney ") is a public official as that term is defined in the Ethics Act, and hence Cloney is 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. Rehmeyer /Cloney 02 -564 May31, 2002 Page 4 "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. 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. Rehmeyer /Cloney 02 -564 May31, 2002 Page 5 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. Pursuant to Section 1103(a) of the Ethics Act, as a Township Supervisor, Cloney would have a conflict as to matters that would come before him that would result in a financial gain to himself. In each instance of a conflict, Cloney would be required to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act. Having established the above general principles, your specific inquiry shall now be addressed. In support of your argument that Cloney would not have a conflict as to participating in the Township's revision of the 1996 comprehensive plan and related ordinances, you state that any revisions enacted by the Township would not place him in a better position than he was prior to the 1996 enactments when he could have subdivided his land into 84 lots. You further state that the revisions may, in fact, allow Cloney to subdivide his land into even fewer than 84 lots. While the above statements may be true, any references to Cloney's subdivision rights prior to the 1996 enactments are legally irrelevant. As noted above, a conflict of interest exists when a public official /public employee uses the authority of his office /employment or confidential information for a private pecuniary benefit of the public official /employee, a member of his immediate family, or a business with which the public official /employee or his immediate family is associated. In this regard, you do not state whether Cloney's actions with respect to revising the comprehensive plan and related ordinances would give him the ability to subdivide his property into more lots than the current comprehensive plan and related ordinances presently allow, thereby increasing the value of his land. Therefore, it cannot be determined whether a conflict exists under Section 1103(a) of the Ethics Act. In the absence of additional facts, this Advice must necessarily be limited to providing the following general guidance. If Cloney's actions with respect to revising the comprehensive plan and related ordinances would give him the ability to subdivide his property into more lots than the current comprehensive plan and related ordinances presently allow, thereby increasing the value of his land, he would have a conflict of interest and would be required to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act unless the de minimis exclusion or the class /subclass exclusion contained within the definition of "conflict" or "conflict of interest" would apply. The Ethics Act defines "de minimis economic impact" as "an economic consequence which has insignificant effect." 65 Pa.C.S. § 1102. Since the instant matter involves subdivision of land, the de minimis exclusion would not apply because the economic consequence would not be insignificant. See, Schweinsburq, Order No. 900. As for the class /subclass exclusion, in order for the exclusion to apply, two criteria must be met: (1) the affected public official /public employee, immediate family member, or business with which the public official /public employee or immediate family member is associated must be a member of a class consisting of the general public or a true subclass consisting of more than one member; and (2) the public official /public employee, immediate family member, or business with which the public official /public employee or immediate family member is associated must be affected "to the same degree" (in no way differently) than the other members of the class /subclass. 65 Pa.C.S. § 1102; see, Graham, Opinion 95 -002 (citing Van Rensler, Opinion 90 -017); Rubenstein, Opinion 01 -007. Rehmeyer /Cloney 02 -564 May31, 2002 Page 6 In this case, it would be erroneous to identify the subclass as all landowners owning land in the Township that may be zoned rural conservation /agricultural. Because Cloney owns 126 acres of land in the rural conservation /agricultural zone, he certainly would not belong to the same subclass of landowners owning considerably less acreage in those zones. Assuming the revisions to the comprehensive plan and land development, subdivision, and zoning ordinances would increase the number of permissible lots per acreage, Cloney would be impacted to a far greater degree given his extensive land holdings, See, Kablack, Opinion 02 -003; Mihalik, Opinion 90 -002; Dettra, Opinion 89 -021. Even assuming there would be at least one other landowner owning comparable acreage in the rural conservation /agricultural zone so as to be similarly situated, Cloney would have to be affected by the revisions to the same degree as the other landowner(s) in the subclass. Such a determination, however, could only be made through a comparison of real estate appraisals as to the affected properties. In Laser, Opinion No. 93 -002, which involved a township supervisor residing adjacent tads of a proposed development, the issue was 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 proposed development, or whether he would fit within the "subclass" exclusion to the definition of "conflict of interest" as set forth in Section 2 of the Ethics Law. The Commission held that in the absence of appraisals, it was unable to determine whether the value of the township 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 the factual insufficiency, the Commission did not (and could not) reach a conclusion as to whether a conflict existed. Under the proffered facts, it is not possible to factually determine the impact of the proposed revisions on the value of Cloney's property and to what extent he would be affected as compared to other member(s) of the subclass. Accordingly, this Advice is limited to the following. Cloney would not have a conflict as to participating in the Township's revisions of the comprehensive plan and land development, subdivision, and zoning ordinances, conditioned upon the assumptions that: (1) Cloney would belong to a subclass consisting of at least one other landowner owning a comparable number of acreage in the rural /conservation zone; and (2) Cloney and all the other members of the subclass would be affected to the same degree as evidenced by a comparison of real estate appraisals of the affected properties. For a discussion by the full Commission of the application of the class /subclass exclusion, see, Kablack, supra. 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 Supervisor for Hellam Township, Richard Cloney ( "Cloney ") is a public official subject to the provisions of the Public Official and Employee Ethics Act T ("Ethics Act "), 65 Pa.C.S. § 1101 et seq. As to whether Cloney may participate in the ownship's revisions of the comprehensive plan and land development, subdivision, and zoning ordinances given his ownership of 126 acres of land in the Township, only general advice may be given based upon the factual submission. If the revisions would give Cloney the ability to subdivide his property into more lots than the current comprehensive plan and related ordinances presently allow, thereby increasing the value of his land, he would have a conflict of interest and would be required to abstain Rehmeyer /Cloney 02 -564 May31, 2002 Page 7 and observe the disclosure requirements of Section 1103(j) of the Ethics Act unless the de minimis exclusion or the class /subclass exclusion contained within the definition of "conflict" or "conflict of interest" would apply. The de minimis exclusion would not apply because the economic consequence would not be insignificant. The class /subclass exclusion would apply if there would be at least one other landowner owning comparable acreage in the rural conservation /agricultural zone so as to be similarly situated, and Cloney and the other landowner(s) in the subclass would be affected by the revisions to the same degree as evidenced by a comparison of real estate appraisals as to the affected properties. 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