HomeMy WebLinkAbout99-553 StoughJames D. Bogar
One West Main Street
Shiremanstown, PA 17011
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
(717) 783 -1610
1-800- 932 -0936
ADVICE OF COUNSEL
May 25, 1999
FAX: (717) 787 -0806 • Web Site: www.ethics.state.oa.us. e-mail: sec @state.pa.us
99 -553
Re: Conflict; Public Official /Employee; Supervisor; Second Class Township;
Sewer; Farm; Class /Subclass; Use of Authority of Office; Private
Pecuniary Benefit.
Dear Mr. Bogar:
This responds to your letter of April 23, 1999 by which you requested
advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "),
65 Pa.C.S. §1101 et seq., presents any prohibition or restrictions upon a
township supervisor from participating on the issue of the installation of public
sewers when the supervisor owns real estate, a portion of which could be
developed with public sewer.
Facts: Lorin L. Stough (Stough), Chairman of the Board of Supervisors in
Franklin Township, York County, owns real estate in an area where public
sewers are proposed. The real estate in question is a farm, most of which is
located in the flood plain. A small portion of land could be developed with
public sewers. The Board of Supervisors must vote on a proposed amendment
that would bring about the installation of public sewers to the existing Act 537
Plan of Franklin Township.
Inquiry is made concerning the propriety of Stough participating in the
process concerning this matter, given his ownership of the real estate that
would be subject to installation of public sewers.
Discussion: It is initially noted that pursuant to Sections 1107(10) and
1107(11) of the Ethics Act, 65 Pa.C.S. §§1107(10), (1 1), 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,
Bogor, 99 -553
May 25, 1999
Page 2
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), (1 1). An advisory only affords a
defense to the extent the requestor has truthfully disclosed all of the material
facts.
As Chairman for Board of Supervisors of Franklin Township, Stough is
a public official as that term is defined in the Ethics Act, and hence Stough are
is subject to the provisions of that Act.
Section 1 103(a) of the Ethics Act provides:
Section 1103. Restricted activities,
65 Pa.C.S. §1102.
(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:
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.
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
Bogar, 99 -553
May 25, 1999
Page 3
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:
65 Pa.C.S. §1103(j).
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, Maar,
Advice 91- 523 -S.
Bogor, 99 -553
May 25, 1999
Page 4
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.
From the submitted facts, public sewers would have a positive financial
impact upon Stough's farm in that a portion of the farm, which is in the flood
plain for the most part, could be developed with the installation of public
sewers. Consequently, public sewers would result in a pecuniary benefit to
Stough. If Stough would participate in the sewer issue, that would be a use
of authority of office which would result in a private pecuniary benefit to
Stough through the increase in value of his farm.
Having noted the above conflict, there are two exceptions provided in
Section 1103(a) of the Ethics Act. One exception excludes a conflict when the
action affects to the same degree a class or subclass consisting of an industry,
occupation, or group which includes the public official. In this case, the people
who would be subject to the sewer installation would be a subclass. The issue
becomes whether all of the individuals in that subclass would be affected to
the same degree. The Commission addressed that issue in Laser, Opinion 93-
002 and found it would be necessary to obtain real estate appraisals in order
to determine whether the individuals in the subclass would be affected to the
same degree.
Under the facts which you have submitted, it is impossible to determine
with certainty whether and, if so, to what extent Stough would be affected as
compared to other individuals whose real estate would be affected by sewers.
In Laser, Opinion, supra the Commission was given far more factual
detail than you have provided. Yet, in the absence of appraisals, the impact
upon the value of the property in question was speculative, and based upon the
factual insufficiency, the Commission did not (and could not) reach a
conclusion as to whether a conflict existed.
In this case, Stough would have a conflict as to participating on the issue
of sewer installation which would affect the value of his farm. The subclass
exclusion to conflict might possibly apply; however, real estate appraisals
would be necessary to make that factual determination as per Laser, supra.
Consequently, based upon a factual insufficiency, this Advice is
necessarily limited to providing the above general guidance.
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
Bogar, 99 -553
May 25, 1999
Page 5
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 Supervisors in Franklin Township, Lorin L. Stough is a
public official subject to the provisions of the Public Official and Employee
Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 at seq. Under Section 1103(a),
Stough would have a conflict in participating as to the matter of the installation
of sewers in an area where he owns a farm that would be positively impacted
in value if sewers were approved. Stough's conflict might be subject to the
subclass exclusion from conflict when the action affects to the same degree
a subclass consisting of the individuals that would be subject to sewer
installation. Real estate appraisals would be necessary to determine whether
Stough would be affected to the same degree as all other individuals in terms
of real estate valuation. This advice is general in nature because of the factual
insufficiency as to real estate appraisals. 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
deceived at the Commission within thirty (30) days of the date of
this Advice pursuant to 51 Pa. Code §13.2(h 1. 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,
Vincent J. Dopko
Chief Counsel