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HomeMy WebLinkAbout86-005 McCardleSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 June 20, 1986 OPINION OF THE COMuISSION Mr. John T. Jordan 86 -005 Mr. Joel Colvin Mr. Howard McCardle 92.9 Springwood Drive West Chester, PA 19382 Re: Township Supervisor, Participation Township Agricultural Ordinance, Interest in Ordinance Dear Messers Jordan, Colvin and McCardle: This responds to your appeal of the Advice of Counsel (86 -516) issued February 12, 1986. I. Issue: Whether the State Ethics Act presents any prohibition upon a township supervisor's participation in a township decision to implement an Agricultural Security Area when the supervisor has an interest in the land comprising that area. II. Factual Basis for Determination: On behalf of the township hoard of supervisors for the Township of East Bradford, Mr. John Jordan had requested the advice of the State Ethics Commission regarding the above issue. The facts as set forth in Mr. Jordan's letter of request as well as other information that has been provided in relation to this matter follows: Joel Colvin, a Township Supervisor, is engaged in the husiness of farming in the township. The township has recently considered the implementation of an Agricultural Security District pursuant to the Agricultural Area Security Law. 3 P.S. 6901 et. seq. This Agricultural District was implemented by Ordinance. Mr. Colvin did not participate in the township's passage of that ordinance. The purpose for his abstention in this matter was hased upon the fact that certain citizens had raised objections to Mr. Colvin's potential conflict of interest in this matter. Mr. Colvin owns or. John T. Jordan Mr. Joel Colvin Mr, Howard McCardle June 20, 1986 Page 2 approximately 15 acres of farmland in East Bradford Township, Mr. Colvin farms on approximately 1,200 acres of land in the township. The land not owned hy Mr. Colvin is rented from area landowners. 650 acres of the land that Mr. Colvin currently farms are within the Agricultural Security District and 550 acres are outside of the District. On February 12, 1986, Advice of Counsel, 86 -516, was issued, That advice concluded that a township supervisor could not participate in a township's decision to implement an Agricultural Security Area if the supervisor either owned or leased the land subject to the town hip's decision. On February 27, 1986, -'Mr. Ross Unruh, the Township Solicitor, provided additional information and requested a further review of the aforementioned Advice of Counsel. The information indicated that on or about August 13, 1985, the township hoard of supervisors passed a resolution authorizing the township solicitor to prepare and advertise an ordinance, establishing agricultural areas in the township in accordance with applicable law. The resolution was passed after the review of reports that had been received from the East Bradford Township Planning Commission. On or ahout September 10, 1985, an ordinance was enacted estahlishing the agricultural area. The ordinance described, in an exhibit, the land to he included in this area but placed no other restriction conditions or limitations on the land use. The agricultural security area was, thereafter, implemented by way of an Area Security Agreement, which was entered into on a voluntary hasis hy the owners of the land included in the security area. Tiat agreement, in part, provided as follows: (b) any changes in land use to a use not defined by Act 43 shall not he permitted except as provided by the terms.;of either the partial and /or permanent release referred to in paragraphs 3 and 4 below. 3. Each undersigned may, in his or her sole discretion, release and remove from the provisions of this Agreement a maximum in any one (1) year of thirty percent (30%) of the acreage originally covered hy this agreement upon providing all of the remaining undersigned with fifteen (15) days prior written notice of his or her intention to do so. 4. Each undersigned may, upon fifteen (15) days prior written notice to the remaining undersigned, he completely released and removed from the provisions of this agreement for the following reasons: (1) relocation or retirement of land owner; Mr. John T. Jordan Mr. Joel Colvin Mr. Howard McCardle June 20, 1Q86 Page 3 (2) personal difficulties, or financial loss related to agricultural operations. (3) deaths or disability of land owner(s) or his or her spouse, or principal operator of his or her farm; (4) mutual consent of all of the parties to this agreement. Mr. Unruh further indicated that the implementation of the Agricultural Security Area would provide no financial incentives to the participants and that only inchoate benefits would be derived by the participants. On March 17, 1986; a Supplemental Advice of Counsel was issued wherein it was concluded that the original Advice of Counsel should not he amended. On April 4, 1986, Mr. Unruh, on behalf of the hoard of supervisors, appealed the Advice of Counsel to the full Commission. In addition to the foregoing, we have heen provided with other information, including interpretations of certain provisions of the Agricultural Area Security Law. We also have been advised that the Security Agreement was not binding on the township. Additionally, while Mr. Colvin was involved in gaining citizen support for the district's implementation, this was not done as a puhlic official but rather as a private individual. III. Discussion: As a township supervisor in a township of the second class, Mr. Colvin is clearly a puhlic official as that term is set forth in the State Ethics Act. 65 P.S. 6402. As such, his conduct must conform to the requirements of the Act. Sowers, 80 -050; Welz, 86 -001. Generally, the Ethics Act provides as follows: Section 3. Restricted activities. (a) No puhlic official or public employee shall use his puhlic office or any confidential information received through his holding puhlic office to ohtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a husiness with which he is associated. 65 P.S. 403(a). Within the above provision of law, a puhlic official may not use his position in order to ohtain any financial gain for himself, a member of his family, or a husiness with which he is associated. Similarly, a puhlic official may not Mr, ,John T. Jordan Mr. Joel Colvin Mr. Howard McCardle June 20, 1986 Page 4 use confidential information obtained in his puhlic position for this purpose. A public official, within the above provision of law, must not participate in a matter pending before his governmental hody if financial henefits will he derived therefrom. King, 25-025; Sowers, 20 -050. In addition to Section 403(a) of the Act, cited above, we must also consider the instant situation in light of Section 403(d) of the State Ethics Act, which allows this Commission to address other areas of possihle conflict. Such a conflict would arise in situations where a puhlic official attempts to represent interests that are adverse to the interest represented in his official capacity. See, Allen, 79 -024, Fritzinger, 80 -008; Domalakes, 85 -010. In order to determine whether the actions of Mr. Colvin could present a conflict of interest, we must review the applicable law as well as the purpose for the implementation of an Agricultrural Security District in order to determine if Mr. Colvin would ohtain or secure any type of financial gain through the establishment of such District or if his actions would, in any way, occasion a conflict of interest. Pursuant to the Agricultural Area Security Law, 3 P.S. 6901 et. seq., the governing hody of a local municipality such as the township hoard of supervisors, may establish an agricultural security area for the purpose of maintaining the agricultural use of that area in the township. The implementation of an- Agricultural District is within the discretion and authority of the governing body, i.e. the township hoard of supervisors in this case, and the request for such a designated district may he made by any owner or owners of agricultural land. The governing body, in considering such a proposal, must evaluate various factors to he considered. These factors are set forth in the Agricultural Area Security Law. 3 P.S. 6907. Participation by land owners in the Agricultural District is voluntary. The key factor for our consideration under the Ethics Act, of course, is whether the participation by the township supervisor, who owns or leases 30% of the land in the security area, in the township's decision to implement the district would result in his receipt of financial gain. In order to make this determination, we must review the enabling legislation to garner what, if any, henefits will be accorded to participating land owners. The Act initially provides that "The Addition or deletion of land in the agricultrural area shall only occur after seven years or whenever the agricultural area is subject to review by the local governing hody." 3 P.S. 6909(d). Mr. John T. Jordan Mr. Joel Colvin Mr. Howard McCardle June 2n, 1985 Page 5 On its face, the foregoing provision would appear to create a land use restiction upon security areas. Official interpretations of this provision of law, however, indicate that the Act does not restrict to any extent and use and, therefore, the Act, by itself, will not guarantee a particular land use for seven years. The seven year provision would only prohibit a change in the official registration of the land as agricultural. In addition to the foregoing, the Agricultural Area Security Law provides that a political subdivision or municipality may not enact any ordinance or law that creates, as a public nuisance, any agricultural activity or operation conducted using normal farming operations within an agricultural area if such agricultural activity or operation does not hear a direct relationship to the public health and safety. Generally, as a result of this particular provision of the Act, the municipality would he prevented from basically enacting or enforcing public nuisance ordinances against normal agricultural operations. It has been argued that the exemption of farming operations from public nuisance consideration would he a financial benefit, thereby requiring the supervisor's abstention from participating in the township's decision to implement the agricultural security area. While such exemption, in fact, may accord to the owners of farm land in the district a financial henefit, we note that an identical privilege relating to exemption from public nuisance ordinances is accorded to agricultural operations by virtue of Act 133. 3 P.S. $951. This exemption exists in relation to all agricultural operations that have existed suhstantially unchanged since the established date of their operations. Thus, regardless of whether the township implements an agricultural security area, the protection from enforcement of public nuisance ordinances is generally accorded to farm operations throughout the Commonwealth by virtue of another law. Thus, it is our determination that the exemption from public nuisance ordinance enforcement that is accorded by virtue of the Agricultural Area Security Law does not result in the obtaining of a financial gain to. the land owner. The implementation of such a district, by the township, therefore, would not result in a financial gain for the supervisor. The Agricultural Area Security Law also provides for a three tier review process which requires that certain approvals he obtained prior to the condemnation of any land located in an agricultural security area. This particular provision of law does not accord that land an absolute exemption from condemnation by the Commonwealth hut merely requires a procedural review process prior to such condemnation. We do not believe that the establishment of a procedural process of this type, would constitute a financial gain. No absolute exemption from condemnation is accnrded to the property located in the agricultural security area. Additionally, the potential financial gain obtained from this would he so remote so as not to he a factor in our consideration of this matter. The possihility that this particular Mr. John T. Jordan Mr. Joel Colvin Mr. Howard McCardle June 20, 1986 Page 6 supervisor's land would he suhject to condemnation at some point in time and that he is participating in the township's decision to accord his land a special privilege so as to avoid that possibility is not a realistic enough gain to require his ahstention. In addition to the foregoing, the Agricultural Area Security Law also mandates that all Commonwealth agencies are to encourage the maintenance of viable farm land and are to modify their administrative procedures to this end, insofar as consistent with the promotion of public health, safety and other provisions of law. Once again, we believe that the potential modifitation of Commonwealth agency policies, to accommodate farming operations, is to remote of a henefit to require this supervisor's ahstention. A review of all the factors involved in this situation leads us to conclude that this supervisor would he obtaining no financial gain of any type by the implementation of the agricultural security area. No land use restrictions have heen enacted by the township in this situation and the agreement between the land owners, which does place some use restrictions on the farms included in the area, is between private parties. The township was not a participant in this agreement and the township neither approved nor recommended the implementation of this agreement. Thus, there would have heen no official involvement by Mr. Colvin, as a township official, in a matter which accorded a financial benefit to himself. Additionally, while the Agricultural Area Security Law does accord certain privileges to participating land owners, these privileges do not appear to result in the receipt of any financial gain to the participating land owners. We, therefore, conclude that a township supervisor, under the particular facts of this situation, may vote upon the township's decision to implement an agricultural security area. The previously issued Advice of Counsel is, therefore, superseded by this opinion. We note that our decision, in this respect, is hased solely upon the facts of this particular matter and the fact that no official township action results in the receipt of a financial henefit or gain to the individual involved. IV. Conclusion: The State Ethics Act would not prohibit a township supervisor from participating in the township's decision to implement an agricultural security area even where that supervisor owns or leases 30% of the land to he included in said area, as the implementation of such area would not result in the supervisor receiving any type of financial gain or henefit therefrom. This conclusion is reached as a result of all of the particular factors set forth above. Mr. John T. Jordan Mr. Joel Colvin Mr. Howard McCardle June 20, 1986 Page 7 Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance of the advice given. This letter is a public record and will he made availahle as such. Finally, any person may request within 15 days of service of the opinion that the Commission reconsider its opinion. The person requesting reconside- ration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. Ry the Commission, G. Sieber Pancoast Chairman