HomeMy WebLinkAbout93-002 FenicleSTATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
OPINION OF TH COMMISSION
Before: James M. Howley, Chair
Daneen E. Reese, Vice Chair
Dennis C. Harrington
Roy W. Wilt
Austin M. Lee
Allan M. Kluger
DATE DECIDED: May 7, 1993
DATE MAILED: May 20, 1993
93 -002
Thomas A. Laser
c/o Linus E. Fenicle, Esquire
Hetrick, Zaleski, Ernico & Pierce
10 South Market Square, Suite 500
P.O. Box 1265
Harrisburg, PA 17108 -1265
Re: Conflict, Public Official, Second Class Township, Supervisor,
Use of Authority of Office, Proposed Development, Real Estate
Interest, Immediate Family, De Minimis, Class, Subclass,
Affect to the Same Degree, Facts, Appeal of Advice.
Dear Mr. Laser:
This Opinion is issued pursuant to the appeal of the Advice of
Counsel, No. 93 -527 issued on March 19, 1993.
I. ISSUE:
Whether under the Public Official and Employee Ethics Law a
township supervisor would have a conflict of interest or would be
within the "subclass" exclusion to the statutory definition of
"conflict of interest," in matters pertaining to a proposed
development which would be adjacent to the supervisor's residential
property as well as other properties.
II. FACTUAL BASIS FOR DETERMINATION:
The presented issue was originally processed as a request for
an Advice of Counsel and as a result Advice of Counsel, No. 93 -527
Thomas A. Laser
May 20, 1993
Page 2
was issued on March 19, 1993. That Advice concluded that as a
Township Supervisor for Freedom Township in Adams County,
Pennsylvania, Thomas A. Laser (Laser) is a "public official"
subject to the Ethics Law, and that based upon the submitted facts,
he would have a conflict of interest as to a proposed development
of a Bible conference and retreat center on approximately 500 acres
of land which abuts his residential property. The Advice further
concluded that the submitted facts failed to meet the burden to
demonstrate that he would fit within the "subclass" exclusion to
the definition of "conflict of interest." He was further advised
that in each instance of a conflict of interest, he would be
required to abstain and to satisfy the disclosure requirements of
Section 3(j) of the Ethics Law.
On April 5, 1993, this Commission received his letter of March
31, 1993, wherein he appealed the above Advice. By letter dated
April 15, 1993, he was notified of the date, time, and location of
the public meeting.
The appeal of advice does not delineate any specific objection
to the Advice. Rather, the appeal simply requests the opportunity
to provide the full Commission with additional information or
evidence necessary for a complete and final ruling. In this
regard, it is noted that the appeal of Advice itself does not
contain any factual submissions, nor does it contest the facts as
set forth in Advice of Counsel No. 93 -527, which facts are
therefore incorporated herein by reference as if more fully set
forth.
Prior to the hearing on the appeal, the Freedom Township
Solicitor submitted a letter dated April 30, 1993 . arguing that
Laser is a member of a class /subclass so as to be excepted from the .
definition of conflict. Freedom Township has the smallest
population (692) of the 21 townships in Adams County. The
development of a conference /retreat center designed to accommodate
1300 people per night is perceived to affect Township residents in
three different areas. First, citizens in two Townships reside on
22 properties that directly abut the development and reside on 25
properties that are directly across the road from the development.
Of those properties that are in Freedom Township, 44 citizens,
based upon a 90% joint ownership, would live in the immediate
vicinity of the development. Second, since the development is
located in the northwest corner of the Township, a location that is
the farthest point from the main roads, the development traffic
would have to travel the length or breadth of the Township. It is
argued that the cars and trucks hauling food, supplies and waste to
or from the development could affect 99 properties and 187
citizens. Third, since the development straddles the Middle Creek
Trout Stream, which spans half the length of the Township, a
proposed sewage treatment plant for the development could empty up
Thomas A. Laser
May 20, 1993
Page 3
to 75,000 gallons of effluent into the trout stream daily. It is
asserted that 47 citizens from 25 properties with stream frontage
could be affected. It is argued that Laser is affected as one of
the 44 landowners in the vicinity and as an acreage landowner, he
is affected equally noting that he is not close or far from the
development, is the owner of an average size lot of 1.3 acres and
is the owner of an average size or value house. Laser is affected
far less as to transportation or the trout stream in that he does
not live on the three roads that would handle the main traffic and
does not own frontage on Middle Creek.
Since appraisals were not obtained, neither Laser nor the
Township Solicitor would speculate as to the impact of the
development on the value of Laser's property.
Additional commentary was provided by one of the developers,
Mrs. Crowley, and her counsel. The site was selected for
development as a rural area for a Bible conference /retreat center.
The goal is for a retreat which is rural, beautiful and near to its
natural state. Another development has operated for over 20 years
and it is believed that the property value there did not decrease
as a result of that retreat conference. Lastly, the developer's
counsel believes that, although not an issue before the Commission,
there exists a bias or prejudice by Laser regarding the
development.
III. DISCUSSION:
As a Supervisor in
Pennsylvania, Thomas A. Laser
term is defined under Act 9 of
the Commission.
Freedom Township, Adams County,
(Laser) is a public official as that
1989 and the current regulations of
We must determine whether as a Township Supervisor residing on
one of various properties adjacent to the lands of a proposed
development, Laser 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, 65 P.S.
5402.
"`Section 3(a) of the Ethics Law provides:
Section 3. Restricted Activities.
(a) No public official or public
employee shall engage in conduct that
constitutes a conflict of interest.
Thomas A. Laser
May 20, 1993
Page 4
The following terms are defined in the Ethics Law as follows:
Section 2. Definitions.
"Conflict or conflict of interest." Use
by a public official or public employee of the
authority of ILLs office or employment or any
confidential_Wetmation 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. "Conflict" or "conflict of
interest" 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.
Section 3(j) of the Ethics Law provides as follows:
Section 3. Restricted activities.
(j) 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
Thomas A. Laser
May 20, 1993
Page 5
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.
If a conflict exists, Section 3(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 Law, then in that event participation is
permissible provided the disclosure requirements noted above are
followed. lee, Mlakar, Advice 91-523-S.
For an appropriate disposition of these types of cases
involving conflict issues with proferred de minimis or class/
subclass exclusions, it is imperative that the requestor of an
advisory submit sufficient facts for the Commission to determine
whether there is a pecuniary benefit and the amount, and if so,
whether the conflict is de minimis or affects to the same degree a
class /subclass.
Advice of Counsel No. 93 -527 applied the above provisions of
the Ethics Law to the facts which Laser presented in his initial
letter of inquiry, and determined that the statutory elements for
a conflict of interest would be present. Those elements are found
within the definition of "conflict of interest" itself, set forth
above, and exist where a public official /public employee uses the
authority of his public position or confidential information
received by being in that position 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.
Although Laser did not specifically appeal from the conclusion
that the statutory elements for a conflict of interest exist in
Thomas A. Laser
May 20, 1993
Page 6
this case, additional facts and argument have been presented in an
attempt to establish the applicability of the "subclass" exclusion
found in the definition of "conflict of interest."
In reviewing this matter, we believe that the Advice of
Counsel is overly broad in its determination that Laser would have
a conflict as to all future matters involving this development.
However, in disposing of the appeal from the Advice, we face a
conundrum in that the four individuals who made presentations did
not provide any factual documentation as to the question of
whether the value of Laser's property would be affected by the
development, whether such economic impact would consist of an
increase or decrease in land values, taxation or some other
economic factor(s). Laser and his counsel indicated that they did
not want to speculate on value while Mrs. Crowley, a developer,
indicated that in one of her other developments, she did not
believe that property values decreased as a result of that
retreat /conference center.
Under these circumstances, we are not in a position to say
that a conflict exists since we have no evidence as to whether
there is a private pecuniary benefit. The Advice assumed that the
location of Laser's property would create a private pecuniary
benefit. We are not prepared to say that, if one lives adjacent to
a development, a pecuniary benefit would automatically follow.
The same concern exists as to the question of whether the
action of Laser would have a de minimis economic impact or whether .
it would affect to the same degree a class or subclass. Thus, even
if we had facts to determine whether a conflict existed, we still
would need facts to determine whether the de minimis or class/
subclass exclusions apply.
Our result should not be construed to suggest that an
incomplete or deficient factual submission will supply a requestor
with what he perceives to be a favorable result. All that we have
determined is that the facts are insufficient to conclude that a
conflict exists. If, in the instant matter, there are facts which
though not presented would establish that there would be a private
pecuniary benefit, then this Opinion will not accord Laser a
defense under Section 7(10) of the Ethics Law.
Additionally, it should be noted that during the course of
Laser's presentation, it was mentioned that in the future a number
of issues may arise regarding the development including fire and
police protection, taxation, zoning and other matters. Our Opinion
in no way relates to Laser's participation as to those issues which
must be addressed as they arise.
We reverse Advice of Counsel 93 -527 because there was not a
Thomas A. Laser
May 20, 1993
Page 7
factual basis to establish that there was a private pecuniary
benefit as to Laser. We do not conclude that Laser is without a
conflict based upon the same factual insufficiency. Our action
merely solidifies our conclusion that there are not sufficient
facts present to establish a conflict or lack thereof and without
those facts we cannot say that Laser does or does not have a
conflict.
Summarizing the above, we are unable to find that a conflict
exists in this case based upon the limited facts. Second, as to
future matters involving the development before the Township Board,
it is suggested that factual data, based upon competent opinion
relative to the private pecuniary benefit issue, be presented so
that we have sufficient facts to make a definitive determination.
Lastly, the propriety of the proposed conduct has only been
addressed under the Ethics Law; 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 Law. Specifically not
addressed herein is the applicability of the Second Class Township
Code.
Advice of Counsel 93 -527 is reversed.
IV. CONCLUSION:
A Township Supervisor is a "public official" subject to the
provisions of the Ethics Law. With regard to a proposed
development on approximately 500 acres adjacent to a supervisor's
residential property as well as other properties, Advice of Counsel
93 -527 is reversed in that there are not sufficient facts under the
Ethics Law to conclude that a private pecuniary benefit exists so
as to find a conflict of interest. Such does not constitute a
general approval as to the supervisor that he may participate in
all matters in connection with the developer. Each matter will
have to be resolved on a case by case basis under the Ethics Law to
determine whether there is a conflict.
Pursuant to Section 7(10), the person who acts in good faith
on this opinion issued to him shall not be subject to criminal or
civil penalties for so acting provided the material facts are as
stated in the request.
This letter is a public record and will be made available as
such.
Finally, any person may request the Commission to reconsider
its Opinion. The reconsideration request must be received at this
Commission within fifteen days of the mailing date of this Opinion.
Thomas A. Laser
May 20, 1993
Page 8
The person requesting reconsideration should present a detailed
explanation setting forth the reasons why the Opinion requires
reconsideration.
By the Commission,
es M H�
Chair