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HomeMy WebLinkAbout02-526-S ReevesBobbi Reeves, Commissioner Upper Pottsgrove Township 1876 Laura Lane Pottstown, PA 19464 Re: Conflict; Public Official /Employee; Township; Commissioner; Prior Litigation Involving Commissioner and Developer; Participation in Matters Before the Board Involving Properties Owned By Or Under Control Of Developer. Dear Ms. Reeves: ADVICE OF COUNSEL July 24, 2002 02 -526 -S This responds to your letter of June 12, 2002, by which you requested supplemental advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Ha.GS. § 1101 et seq., presents any prohibition or restrictions upon a township commissioner who, in her private capacity, was formerly involved in litigation against a developer as to a particular real estate parcel, with regard to participating in discussions or votes as to other properties owned by or under the control of that developer. Facts: As an Upper Pottsgrove Township Commissioner, you request a supp emental advisory from the State Ethics Commission. You initially requested an advisory from the State Ethics Commission by letter dated January 30, 2002. Your inquiry focused upon whether you would have a conflict of interest under the Ethics Act in matters involving a particular developer, Richard Mingey ( "Mingey "), given that you and Mingey were at that time parties to litigation. Specifically, you stated that in 1996, you had purchased a home in a development in Upper Pottsgrove Township ( "Township'). Subsequently, Mingey presented a plan to the Township Board of Commissioners ( "Board ") for Woodbrook," a real estate parcel located near your home. Issues arose as to whether Woodbrook was zoned R -2 or R -3. Ultimately, you became a party in litigation against Woodbrook. While you stated in your initial inquiry that based upon the advice of the Township Solicitor, you would recuse yourself from any discussions and votes regarding Woodbrook, you asked whether you would have a conflict of interest in matters before the Board involving other properties either owned by or under the control of Mingey. Reeves 00 -526 -S July 24, 2002 Page 2 Reeves, Advice 02 -526 was issued to you on March 4, 2002. Based upon prior Commission precedent, Reeves, Advice 02 -526 concluded as follows: 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() of the Ethics Act. Reeves, Advice 02 -526 at 4. In your most recent request for a supplemental advisory, you have submitted the following additional facts. You state that the "original conflict" has now been "dismissed" and that the Woodbrook parcel is no longer in litigation. Given that the Woodbrook parcel is no longer in litigation, you ask whether you may participate in discussions and votes of the Board pertaining to other properties in the Township that are owned by or under the control of Mingey. 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 Reeves 00 -526 -S July 24, 2002 Page 3 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. 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. Reeves 00 -526 -S July 24, 2002 Page 4 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. Based upon your specific factual representation that the Woodbrook parcel is no longer in litigation, you are advised as follows: Section 1103(a) of the Ethics Act would not prohibit you from participating in discussions and votes pertaining to other properties owned by or under the control of Mingey conditioned upon the assumptions that: (11) you would not, in a private capacity, be an adverse party in any other legal action(s) against or involving Mingey; and (2) any such participation by you as a Township Commissioner would not involve the prospect of a private pecuniary benefit prohibited by Section 1103(a). 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 First Class Township Code or case law pertaining to bias. Conclusion: As a Commissioner for Upper Pottsgrove 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. Based upon your factual representation that the Woodbrook parcel referenced in the Advice previously issued to you, Reeves, Advice 02 -526, is no longer in litigation, Section 1103(a) of the Ethics Act would not prohibit you from participating in discussions and votes pertaining to other properties owned by or under the control of developer Richard Mingey ('Mingey ") conditioned upon the assumptions that: (1) you would not, in a private capacity, be an adverse party in any other legal action(s) against or involving Mingey; and (2) any such participation by you as a Township Commissioner would not involve the prospect of a private pecuniary benefit prohibited by Section 1103(a). 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 Reeves 00 -526 -S July 24, 2002 Page 5 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