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HomeMy WebLinkAbout98-592 SestakDaniel P. Lyons, Esquire Primrose, Lyons & Quigley 17 N. 6th St. Stroudsburg, PA 18360 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1-800- 932 -0936 ADVICE OF COUNSEL September 16, 1998 FAX : (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: sec @state.pa.us 98 -592 Re: Conflict;. Public Official /Employee; Zoning Hearing Board; Member; Chair; Second Class Township; Board of Supervisors; Building Permit; Zoning Officer; Permit Revocation; Appeal; Concerned Residents Group; Resignation. Dear Mr. Lyons: This responds to your letters of August 6 and August 13, 1998 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a zoning hearing board member from participating in a hearing on an appeal from a revoked building permit when the member had some involvement with but resigned from a residents group which opposes the building permit. Facts: As Solicitor for the Jackson Township (Zoning) Hearing Board, you request an advisory from the State Ethics Commission on behalf of Joseph Sestak, the Chairman of the Zoning Hearing Board. After a particular property owner had been denied a building permit by the Jackson Township Zoning Officer, a hearing was held before the Jackson Township Board of Supervisors. The Zoning Officer was directed by the Board of Supervisors to issue a building permit to the property owner. At a second meeting of the Township Supervisors Board on July 10, 1998, a group of residents known as the Concerned Residents of Jackson Township (CRJT) appeared individually or with Counsel. The building permit was then revoked by the Zoning Officer. The property owner filed an appeal to the Zoning Hearing Board from the July 10, 1998 revocation of the building permit. It is expected that the CRJT will be represented by Counsel at the Zoning Hearing Board "herein scheduling" (hearing) to oppose the property owner's appeal. CRJT was formed by Township residents in reaction to various decisions of the Township Supervisors, dating from January of 1998, including but not limited to the Supervisors' attempt to decertify some unspecified "union," to bill the Township for hours in addition to their salaries, and the "fact that the alternate zoning hearing board member for the last two years was not nominated to a board, but a third party was, ... Sestak attended a July 2, 1998 "pre- organization or organizational meeting" of the CRJT. At that time, Sestak placed his name, address, and phone number on a list of interested individuals and volunteered to serve on a CRJT legal committee. At that meeting, no one solicited Sestack for a donation nor did he donate money to CRJT. Sestak Lyons 98 -592 September 16, 1998 Page 2 went on vacation from July 4 through July 19, 1998. When Sestak returned, he attended a CRJT meeting and became aware of the property owner's pending "application" (appeal) before the Zoning Hearing Board. Sestak subsequently resigned from the CRJT. Based upon the above, you ask whether Sestak must recuse himself from the hearing of Jackson Township Zoning Board as to the property owner's appeal. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) 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. Although it is the duty of the requestor to submit the material facts in a discernible manner, the letter of request in this case is obscure and difficult to comprehend. Hence, the above recitation of the facts is to an extent an interpretation of the letter of request. As Chairman and a Member of the Jackson Township Zoning Hearing Board, Sestak is a public official as that term is defined in the Public Official and Employee Ethics Law ( "Ethics Law "), and hence he is subject to the provisions of that law. 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. 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. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, Lyons 98 -592 September 16, 1998 Page 3 organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "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. Section 3(a) of the Ethics Law prohibits a public official /public employee 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. 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 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. In each instance of a conflict, Section 3(9 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 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 Law to the instant matter, DeLano, Opinion No. 88 -008 is the seminal Commission decision on the issue of participation by a public official in a municipal matter when the public official is a member of a concerned citizens' group which espouses a position on that matter. In the cited opinion, the Lyons, 98 -592 September 16, 1998 Page 4 Commission held that a township supervisor had a conflict in matters relating to a proposed landfill when the supervisor was a member of a citizens' group which was in litigation as to an existing incinerator on the site of the proposed landfill and when the incinerator was operated by the same owners of the landfill through a different corporate entity. The Commission further determined that if the supervisor would withdraw as an active participant from the citizens' group and from the litigation, he could participate and vote on matters involving the landfill, the incinerator, or the corporate owner of the landfill. By applying DeLano supra to the instant matter, Sestack would not have a conflict and hence could participate and vote as to the hearing in the appeal of the property owner because he has resigned from the CRJT. 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 and a Member of the Jackson Township Zoning Hearing Board, Sestak is a public official subject to the provisions of the Ethics Law. Based upon the submitted facts, Sestack may participate in a zoning hearing board hearing on an appeal from a revoked building permit when he had some involvement with but resigned from a concerned residents group which opposes the building permit. 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. erely, fr incept . opko Chief Counsel