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HomeMy WebLinkAbout96-586 MillerAllan B. Greenwood, Esquire Cremers, Morris & Greenwood 1220 Valley Forge Road Suite 6 PO Box 598 Phoenixville, PA 19460 Dear Mr. Greenwood: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 30, 1996 96 -586 Re: Conflict, Public Official /Employee, Township, Board of Supervisors, Chairman, Application for Zoning Amendment, Application for Conditional Use, Hamilton Tract, Unified Development Area, Lease, Farm. This responds to your letters of July 25, 1996 and August 2, 1996 in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon the Chairman of a Board of Supervisors as to applications for a zoning amendment and conditional use for a 307 acre tract of land which he currently rents, and upon which he resides with his family, subleases three other dwelling units and conducts farming operations. Facts: As the Solicitor for West Vincent Township in Chester County, Pennsylvania, you request an advisory on behalf of Kenneth Miller, Jr., Chairman of the Township Board of Supervisors. There is presently pending before the Board of Supervisors an Application for a Zoning Amendment and, concurrently, an Application for a Conditional Use, which conditional use would be possible if the Zoning Amendment is adopted. The applications pertain to a 307 acre tract of land known as the "Hamilton Tract" which is located near the intersection of Routes 401 and 100 in the western part of the Township. The Zoning Change Application would create an overlay district known as a Unified Development Area. You state that this application would affect the entire Township although the Zoning Map would be changed only as to the Hamilton Tract itself. If the zoning change is adopted, any other property owner in the Township Greenwood /Miller 96-586 August 30, 1996 Page 2 could seek a Zoning Map change for his or her or its parcel. The Conditional Use Application is restricted in its scope to the Hamilton Tract itself. You state that a question has arisen as to whether Kenneth Miller, Jr. (Miller) would have a conflict of interest which would necessitate his recusal from participation in matters to the Hamilton Tract. You list the following relevant facts: 1. Miller is the Chairman of the Board of Supervisors and has been for several years. He is a dairy farmer, and he and his family presently rent the Hamilton Tract and the four dwelling units located thereon. Miller and his family live in one of the residential units and sublease the other three dwelling units. Approximately 125 acres of the Hamilton Tract's 307 acres is tillable land. 2. Part of the Hamilton Tract consisting of about 158 acres was owned by Miller and his father from approximately 1976 to 1986. Miller's parents never lived on the Hamilton Tract nor did Miller and his parents as a family, although you state that Miller did live in a cottage on the tract for a few years while he was in his twenties before he married. 3. The lease has been in existence since 1986 and is on a month -to -month basis with either the landlord or tenant able to terminate the lease upon thirty days written notice to the other. 4. The tillable portion of the Hamilton Tract consists of approximately 125 acres and is part of Miller's overall farming operation and is used to grow crops for the dairy operation. Part of Miller's dairy herd is from time to time placed on the tract to keep the meadows under control. 5. The 125 tillable acres of the Hamilton Tract covered by the Miller lease comprise roughly 20% of the total acreage which is part of Miller's farm operation. Miller's farm operation covers a total of 620 acres. The number of acres which Miller must have under lease or direct fee simple ownership is approximately 400 in order to support his dairy herd. The 220 excess acres is to provide a "cushion" or "backup" in case some of the farmland being rented is lost to him. You state that the loss of farmland is a normal facet of doing business and is always an anticipated possibility. 6. You state that the essence of the Miller farm operation is a dairy herd consisting of 224 cows. The barn and equipment essential to the dairy operation, as well as the vast majority of the total herd, is not located on the Hamilton Tract; rather, it is located on property on Horseshoe Trail in West Vincent Township consisting of 54 acres of which Miller has a one -half interest, his uncle having the other one -half interest. You state that there are presently negotiations underway to allow Miller to acquire his uncle's one -half interest. It is expected that these negotiations will come to fruition shortly and that within the next few months there will be settlement. You state that you have given Miller your opinion that the above fact situation does not present a conflict of interest requiring his recusal from participating in and voting on the Zoning Change Application and the Conditional Use Application and in support of your conclusion, you proffer the following reasons: Greenwood /Miller 96 -586 August 30, 1996 Page 3 a. You state that the 125 tillable Hamilton acres are a relatively small percentage of the total farmland under cultivation by Miller and an even smaller part of his overall operation when it is taken into consideration that the heart and essence of that operation is dairy farming. The barn and equipment, and in most cases, the entire herd, is on property located elsewhere. b. You state that the heart of the dairy operation is on a tract of ground located on Horseshoe Trail in the township regarding which Miller has within the last few years made a very sizable barn investment approaching $200,000. As mentioned above, Miller has a one -half fee simple ownership in this land and is about to acquire the other half fee simple interest if current negotiations bear fruit. c. The existing lease for the portion of the Hamilton Tract in question is terminable upon thirty days notice by either side. There are a multiplicity of factors, known and unknown, which might cause lease termination at any time. d. Miller has expressed to you and to the other members of the Board of Supervisors that he has reached a firm determination in his own mind that he will soon be relocating his residence and will be off the property altogether at some paint in the probably very near future as a consequence of the recent activity regarding the Hamilton Tract. e. Miller has also expressed to you and to the other members of the Board of Supervisors, as well as to Fronefield Crawford, Esquire, Special Zoning Counsel to the Township in this matter, that he has no doubt that he can reach a fair and impartial decision concerning both the Zoning Application and the Conditional Use Application. f. It is the intent of Miller to announce at the commencement of the zoning proceedings before the Board his relationship as lessee of the Hamilton Tract, to set forth the facts which are contained in your letter, and to express his feeling that there is not a conflict of interest and that he can render a fair and impartial decision. At that time, any person wishing to lodge a protest on the conflict of interest question will be given an opportunity to do so. West Vincent Township is still a highly rural township and you state that if Miller has a conflict of interest in this zoning case, it is hard to imagine how any zoning ordinance could be considered since in almost every case one or more Supervisors would have a "conflict of interest." h. You state that Miller's interest in the property is not a direct and particular and immediate interest and his interest is not fundamentally distinguishable from the interest of the general public. This case has great significance within the Township and even beyond it. You state that to disqualify one of the three Supervisors runs the risk that there will be a one -to -one tie vote such that you perceive that there will be no decision rendered or an automatic decision resulting from indecision itself which would not be satisfactory to the applicant or to any protestants or to the general populace and citizens of the Township. 9- Greenwood /Miller 96 -586 August 30, 1996 Page 4 Miller is an experienced member of the Board, who is now and has been its leader. You state that Miller's guidance and participation in the proceeding will be important to a fair and impartial and effective hearing. You further state that you have tried to fathom how Miller's interest might be affected depending upon whether the Applications are approved or disapproved. If approved, Miller will be required to leave the property and cease farm operations on it. At the same time, portions of the Hamilton Tract would then be on the market for sale to farmers or those who would keep the overall tract in open space. You state that Miller is not a person of unlimited means and that he would not be able financially to make a meaningful bid for outright fee simple purchase of any portion of the tract. If the Applications are rejected, it is anticipated that there will be either an Application for Use by Right which would result in an intensive development of the tract on which Miller presently has a month -to -month leasehold interest or there would be a validity challenge or Curative Amendment filed which would provide for an even greater and more intense development of the Hamilton Tract. You state that either way, Miller would be required to leave. He and his family are aware of this and Miller has accepted it. You contend that if it can be argued that there is a potential gain for Miller if the application is denied and a potential gain if the application is approved, that these two things would make his interest in the outcome so uncertain as to cancel one out with the other. You state that if it is so difficult to ascertain whether an approval of the application would help or hurt Miller's personal interest or whether a rejection would help or hurt Miller, it cannot be said that his interest is so direct and immediate so as to cause his disqualification. You note your own views as to Miller's honesty, integrity, common sense and judgment. You further state your belief that Miller's familiarity with the Hamilton Tract would be an asset. The hearings in this matter have been scheduled for August 29, 1996 and September 11, 1996. You indicate that you found the case of Levitt and Sons. Inc. v. Kane, 285 A.2d 917 (1972), to be helpful in your analysis. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(1 1) of the Ethics Law, 65 P.S. § §407(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 P.S. § §407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As Chairman of the Board of Supervisors for West Vincent Township, Chester County, Kenneth Miller, Jr. (Miller) is a public official as that term is defined under the Ethics Law, and hence he is subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Greenwood /Miller 96 -586 August 30, 1996 Page 5 Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. 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 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. "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. "Immediate family." A parent, spouse, child, brother or sister. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. "Financial interest." Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. In addition, Sections 3(b) and 3(c) of the Ethics Law 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 judgement 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 3(j) of the Ethics Law provides as follows: Greenwood /Miller 96 -586 August 30, 1996 Page 6 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 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. See, Mlakar, Advice 91- 523 -S. In applying the above provisions of the Ethics Law to the circumstances which you have submitted, pursuant to Section 3(a) of the Ethics Law, 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 the facts which you have submitted, Miller generally would have a conflict of interest in matters pertaining to the Hamilton Tract. The conflict in any given instance could be based upon a private pecuniary benefit flowing to Miller, member(s) of his immediate family, or his business, or alternatively, the conflict could be based upon the lessor /lessee relationship which exists between the applicant /owner Greenwood /Miller 96 -586 August 30, 1996 Page 7 of the Hamilton Tract and Miller. See Woodrinq, Opinion 90 -001; see also, Bassi, Opinion 86- 007 -R. The Application for a Conditional Use for the Hamilton Tract, and the Application for a Zoning Amendment which will facilitate it, will clearly have a financial impact upon the lessor and upon Miller, his immediate family, and his farming operations. However, with regard to the Zoning Change Application, which will affect the entire Township, the facts are insufficient to determine whether the class /subclass exception to the definition of "conflict" or "conflict of interest" might apply. Thus, based upon the facts which have been submitted, this Advice cannot conclusively determine whether a conflict would exist as to that particular application. See, Laser, Opinion 93 -002. With regard to the Conditional Use Application, there would be a clear conflict of interest for Miller. First, the said application is restricted in scope to the Hamilton Tract itself: thus, the class /subclass exception would have no applicability. Furthermore, a basis for a conflict as to the Conditional Use Application would exist no matter which way Miller would vote. If Miller would vote in favor of the application, he would be taking official action in favor of the lessor who, on a monthly basis, is in a position to decide whether to continue or to terminate Miller's lease (see, Woodrinq, surge; Bassi, supra). Furthermore, based upon the facts which you have submitted, portions of the Hamilton Tract would go on the market for sale to farmers such as Miller. It could very well be financially advantageous to Miller to own such portions of the land which he has been leasing for ten years. Although you have proffered that Miller is "not a person of unlimited means and simply would not have the wherewithal financially to make a meaningful bid for outright fee simple purchase of any portion of the tract," (letter of July 25, 1996 at 4), there would be the potential for financial arrangements other than an "outright fee simple purchase" to be made. If, on the other hand, Miller would vote against the application, the fact that the owner would have to resort to other procedures could result in a significant delay of any prospective termination of Miller's farming operations. If Miller truly is not in a position to reach terms on any portion or portions of the Hamilton Tract, such a delay could allow Miller time to find other land for his farming operation. Farming operations are by their very nature timing- sensitive. The very denial of the application could "buy time" which would result in a private pecuniary benefit through the continuation of Miller's lease, even if only for a while. The facts which you have submitted do not suggest any basis for your proposal that the private pecuniary benefits resulting either way Miller votes cancel each other out. Even if such a theory had any validity, factually there is no basis for concluding that the respective private pecuniary benefits would be equivalent. In each instance of a conflict of interest, Miller would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 3(j). However, given that the Board is a three - member Board, pursuant to Section 3(j), Miller would be able to vote to break a tie vote of the other two Supervisors, if he first properly abstained and satisfied the disclosure requirements. Greenwood /Miller 96 -586 August 30, 1996 Page 8 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 Law 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. Conclusion: As Chairman of the Board of Supervisors for West Vincent Township, Chester County, Kenneth Miller, Jr. (Miller) is a public official subject to the provisions of the Ethics Law. Miller would have a conflict of interest in matters pertaining to the "Hamilton Tract," a 307 acre tract of land on which he resides, subleases dwellings, and conducts farming operations. Such matters which would pose a conflict of interest would include the Application for a Conditional Use which is presently before the Board, and could include (depending upon facts which have not been submitted) the pending Application for a Zoning Amendment. In each instance of a conflict of interest, Miller would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 3(j). If after Miller would abstain and make the requisite disclosures, the other two Members of the Board would cast opposing votes, Miller could vote to break the tie despite his conflict. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), this 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, providing 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. Sin ly T4Q Vincent J. Dopko Chief Counsel