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HomeMy WebLinkAbout98-626 BaileySusan J. Straub Secretary, Monroe Township RR 5, Box 39 Selinsgrove, PA 17870 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1 -800- 932 -0936 ADVICE OF COUNSEL December 17, 1998 Board of Supervisors 98 -626 Re: Conflict; Public Official /Employee; PP &L; Land; Rezoning; Lease; Produce Stand. Dear Ms. Straub: This responds to your letters of November 10 and 16, 1998 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act presents any prohibition or restrictions upon a township supervisor with regard to the proposed rezoning of tracts of land owned by a utility from which the supervisor leases other property to operate a produce stand. Facts: You have been authorized to request an advisory on behalf of Mr. Rick Bailey ( "Bailey "), Chairman of the Monroe Township Board of Supervisors. On April 28, 1998, the Monroe Township Planning Commission sent a letter of recommendation to the Monroe Township Board of Supervisors asking that the Board consider the rezoning of certain tracts of land owned by the Pennsylvania Power and Light Company ( "PP &L "). The land slated for rezoning is comprised of two closed ash basins and open farmland with high tensile power lines. The land would be rezoned from Industrial to Agricultural. The Township Board of Supervisors held a public meeting on the rezoning issue in October. The Board of Supervisors plans to vote on the matter within 90 days. Bailey has a ten -year lease with PP &L to operate a produce stand on property owned by PP &L, which property is not affected by the rezoning request. You state that there would be no monetary gain associated with the rezoning for either Bailey or his family. You request an advisory from the State Ethics Commission as to whether Bailey may vote on the rezoning issue. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(1 1) of the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11 ( "Ethics Act "), 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 FAX : (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: sec@state.pa.us Straub/Bailey 98 -626 December 17, 1998 Page 2 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. An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Member and Chairman of the Monroe Township Board of Supervisors, Rick Bailey is a public official as that term is defined in the Ethics Act, and hence he is subject to the provisions of that Act. Section 1103(a) of the Ethics Act provides: Section 1103. Restricted activities. (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Act as follows: Section 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 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, 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 1103(j) of the Ethics Act provides as follows: Straub /Bailev, 98 -626 December 17, 1998 Page 3 Section 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. 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. 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, Bailey would have a conflict of interest as to the proposed rezoning of the property owned by PP&L. This conclusion is based upon the State Ethics Commission's rulings in Bassi, Opinion No. 86- 007 -R, and Woodrinq, Opinion No. 90 -001. In Bass(, Opinion No. 86- 007 -R, the State Ethics Commission held, inter Aka, that a County Commissioner (Edward Peluso) could not enter into a lease with a municipal authority, where one of the members of the authority (Norman Carson) was a county employee directly responsible to the commissioners of the county, unless the execution of the lease was accomplished after an open and public process, with the authority member abstaining from participating in the review and award of said lease, and the county commissioner abstaining from participating in any matter relating to the authority member in his position as a county employee. The Commission stated, inter . . we cannot ignore the fact that Mr. Carson is an authority member and has influence and control over authority decisions. In this respect, Straub /Bailey 98 -626 December 17, 1998 Page 4 Mr. Carson, by voting on the final adoption of a lease, would be voting on a matter directly related to his employer. Even though that employer is another governmental body, we have held, in the past, that a public official may not vote or participate in a matter if it somehow relates to a financial interest which he may have. See, Well, 86 -001. In the instant situation, Mr. Carson would be called upon to determine the advisability of renting property for the authority. The property which they are seeking to rent is owned by the individual or one of the individuals who currently supervises him and controls his public employment with the county. As a result of this, Mr. Carson, as an authority member, should abstain from participating in any matter relating to this particular lease. See, Bassi, Opinion No. 86 -007 at 3. The Commission further stated: Mr. Paluso as a county commissioner, is, in part, responsible for the general supervision of Mr. Carson. Mr. Carson, on the other hand, is an authority member in a position to grant Mr. Paluso a lease which results in Mr. Paluso receiving a financial gain. It may be difficult for the public to perceive how Mr. Paluso's actions as a county official, would not somehow be influenced by this potential leasing arrangement. It may be argued that Mr. Paluso, in dealing with Mr. Carson, to date, has done so in order to effect the favorable outcome of this lease. Additionally, it could be argued that Mr. Carson voted in favor of the lease in order to advance his position as a full -time county employee. The above factual scenarios, while hypothetical in nature, nonetheless create the types of conflicts of interest that are to be addressed by this Commission. JA,. at 4. In Woodring, Opinion No. 90 -001, the State Ethics Commission reviewed a similar situation. Jesse Woodring, Chairman of the Sunbury Redevelopment Authority, had applied to the City for a rehabilitation grant through the Federal Rental Rehabilitation Program (hereinafter, the "Program "). Kenneth Pick, who was employed as the Executive Director of the Redevelopment Authority (chaired by Woodring) also served as the Community Development Coordinator for Sunbury. In the latter capacity, Pick was administrator in charge of the Program for the City. Pick's functions included administering the Program, reviewing all applications, and determining eligibility. The Commission stated: we are concerned that Mr. Pick, who is an employee of the Redevelopment Authority of which you are Chairman, has the duty of reviewing all applications and determining eligibility in his capacity as Community Development Coordinator for the city. In particular, the potential exists, given the employer - employee relationship between the Redevelopment Authority and Mr. Pick, that your application might be reviewed in a more favorable light than other applications. To forestall such a situation, you must not participate or take any action as to Mr. Pick if your application is approved and you receive benefits. Bassi, Opinion 86 -007. In addition, Section 3(j) of the Ethics Law would require you to publicly note that you would have a conflict as to any matter involving Mr. Pick. In addition, you must file a written memorandum to that effect with the person responsible for recording the minutes. Woodrinq, Opinion No. 90 -001 at 6. Strom! r /Rano... 00' =') December i 7, ry�� Page 5 As was the case in the Bassi and Woodring rulings discussed above, the facts which you have submitted reflect that in his public position, Bailey wouid exercise authority over the proposed rezoning of the land owned by PP &L. In his private capacity, Bailey leases property from PP &L for the operation of a produce stand. In that regard, PP &L is in a position to exercise authority over Bailey. Therefore, for the reasons enunciated in Bassi and Woodrinq, supra Bailey would have a conflict of interest pursuant to Section 1103(a) of the Ethics Act in matters pertaining to the proposed rezoning of the land owned by PP &L. In each instance of a conflict of interest, Bailey would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 1103(j) as set forth above. 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 Second Class Township Code. Conclusion: As a Member and Chairman of the Monroe Township Board of Supervisors, Rick Bailey ('Bailey ") is a public official subject to the provisions of the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11 ( "the Ethics Act "). For the reasons enunciated in Bassi Opinion No. 86 -007 and Woodring, Opinion No. 90 -001, Bailey would have a conflict of interest pursuant to Section 1103(a) of the Ethics Act in matters pertaining to the proposed rezoning of land owned by PP &L. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(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 §1.3.2(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. rely, incent Dop o Chief Cou sel