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HomeMy WebLinkAbout99-637 HighThe Honorable Tim Hennessey House of Representatives 141 East Wing, Capitol House Box 202020 Harrisburg, PA 17120-2020 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 15, 1999 FAX: (717) 787 -0806 • Web Site: www.ethics.state.oa.us • e -mail: ethics @state.pa.us 99 -637 Re: Conflict; Public Official /Employee; Supervisor; Vote; Business With Which Associated; Immediate Family; Son; Township; Developer; Shopping Center. Dear Representative Hennessey: This responds to your letter of November 8, 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 gi seq., presents any prohibition or restrictions upon a township supervisor with regard to voting on an application to rezone a tract of land for the proposed development of a shopping center where: (1) in the past, the supervisor leased one or two of the parcels comprising the entire tract from the individual parcel owners for farming purposes; (2) the supervisor has transferred his farming operation to his son who is now his employer; (3) recently, the supervisor and his son terminated their lease of these parcels; (4) a vote by the supervisor to approve the application to rezone the land could potentially limit or prevent the supervisor or his son from farming the farmed portion of the overall tract; and (5) one of the other members of the five - member board would abstain due to a perceived conflict of interest under the Ethics Act, and another has spoken against the application. Facts: As a State Representative for the 26th Legislative District, you request an advisory from the State Ethics Commission on behalf of North Coventry Township Supervisor, E. Kent High ( "High "). There is presently pending before North Coventry Township ( "Township ") an application to rezone a tract of land to accommodate a proposed shopping center. The subject land consists of 63 acres, with several persons owning individual parcels. The developer of the shopping center has entered into a conditional purchase /sale agreement with the parcel owners. The purchase /sale is conditioned upon the Township's approval of the rezoning application as well as several other approvals necessary to . develop the shopping center. If the Township would grant the application, the earliest time the developer would take title to the subject tract of land would be late in the year 2000. Hennessey 99 -637 December 15, 1999 Page 2 In the past, High leased one or two of the parcels making up the tract from the individual parcel owners, for the cultivation of crops. Several years ago, High transferred his farming operations to his son. High is now employed by his son, E. Kent High, Jr. who, as a married adult, has a family of his own, and lives separately from the Supervisor and his wife on an adjoining farm. Until recently, High's son continued to lease these parcels for farming. Recently, however, High and his son terminated their lease of these farming lands. You have submitted an undated letter from E. Kent High, Jr. to a parcel owner named "Ladson," which letter states: Dear Ladson: RE: Clyde Saylor Estate In regards to your property, approximately twenty -five acres, located between Route 100 on the west and South Hanover Street on the east: We will not be renting nor farming it for the year 2000. We thank you for giving us a year to year lease in the past. Sincerely, E. Kent High, Jr. (Emphasis added). You state that neither High nor his son have had any dealings with the developer of the proposed shopping center in connection with their farming leases or in any other business relationship; they have always dealt with the individual parcel owners. You state that the shopping center developer is "newly -on- the - scene." Because High previously leased a portion of the tract of land which is currently the subject of the proposed zoning change, and because he, as his son's employee, presently farms that land, opponents of the zoning application have questioned his right to vote on the matter, alleging a past or potential conflict of interest. You state that a vote by High to rezone the land could potentially limit or prevent High or his son from continuing to farm the land. Hence, you believe that such a vote could be viewed as operating against High's pecuniary interest, rather than benefitting him. You further state that now that High and his son have disavowed any interest in future farming of the tract, it would appear that any potential conflict of interest has been eliminated. You state that Faldowski, Opinion 98 -010, makes it clear that a supervisor would have a conflict where the supervisor's son would have a contract to provide services for a mall expansion which might be authorized by the supervisor's vote. Contrasting Faldowski with the present situation, you opine that an affirmative vote by High would not result in a pecuniary benefit to himself or to his son, even prior to the renunciation of future leasing for farm use. Moreover, you maintain that even a negative vote by High on the rezoning would fail to impact his or his son's pecuniary interests, given their decision to not farm this land in the future. Hennessey 99 -637 December 15, 1999 Page 3 You seek an advisory as to following questions: 1. Whether the prior "farm" use of a portion of the overall tract by High or High's son creates any conflict of interest where none of the leases were with the proposed shopping center developer and where all farming uses will be terminated prior to the developer's assumption of ownership; and 2. Whether a supervisor who has a conflict of interest may vote against his own personal interests, or whether the conflict bars him from voting at all. 3. Whether High, as one of a five - member board of supervisors, would be authorized to vote under Section 1103(j) where: (a) it appears that another member of the board will abstain from the decision since he has a partial ownership interest in some of the land within the overall tract; and (b) yet another member has been outspoken against the request. You state your view that these factors may make the 3 -vote majority required for approval "unattainable." 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, 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. §51107(10), (1 1). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Supervisor for North Coventry Township, E. Kent High ( "High "), is a public official as that term is defined in the Ethics Act, and hence High 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. 65 Pa. C. S. 51103(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, Hennessey, 99 -637 December 15, 1999 Page 4 65 Pa.C.S. §1102. 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." 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. In addition, Sections 1 103(b) and 1 103(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: 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 Hennessey 99 -637 December 15, 1999 Page 5 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. 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, lakar, 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. The term "immediate family" is defined to include a parent, spouse, child, brother or sister. Because High's son is in one of the familial relationships delineated above, he is a member of High's immediate family. The fact that he is an adult and lives apart from his father has no legal relevance to your inquiry. Further, the son's farming operation, which employs High, is a business with which High and his son are associated. Thus, High would be prohibited from using the authority of his office as a Township Supervisor, or confidential information obtained by being in that position, for the private pecuniary benefit of himself, his son, or the son's farming operation. The specific inquiries which you have posed shall now be addressed. With regard to your first inquiry, you are advised as follows. The submitted facts reflect that all leases between High /his son and the individual parcel owners have been terminated, and that all farming uses of the parcels in question will be terminated prior to the developer's assumption of ownership. Therefore, no conflict of interest would exist for High as to the zoning application or related approvals conditioned upon the assumption that there would in fact be no use of authority of office or confidential information by High for a prohibited private pecuniary benefit. An example of how a conflict could arise despite the termination of the farming of these tracts would be if High would participate while having a reasonable expectation that he would otherwise receive a financial gain, such as through a favorable arrangement to farm some other tract(s) of land. See, Amato Opinion 89 -002. However, absent any actual or attempted private pecuniary benefit, the essential elements for a violation of Section 1103(a) would not exist. Hennessey, 99 -637 December 15, 1999 Page 6 As for your second inquiry, assuming that High's official action would be against his and his son's business interests such that they would suffer a financial detriment by being limited or prevented from farming the land, and that there would be no other basis for a private pecuniary benefit, the requisite element of a private pecuniary benefit would be lacking and no transgression of Section 1103(a) of the Ethics Act would result. See, Chestnutt/Gleason, Advice No. 96 -588; Borgo Order 957; Eisaman, Order 958; and Zentner, Order 963. As for your final inquiry, Mlakar, supra, makes it clear that it is only when the governmental body is unable to take official action because the majority or other legally required vote is unattainable due to the number of members required to abstain, that such abstaining members will be permitted to vote if proper disclosures are made. Thus, in the case of the North Coventry Township Board of Supervisors, a five member board, three Supervisors would have to have a conflict under the Ethics Act in order to make the majority or other legally required vote "unattainable." Where three of the five Members do not have a conflict, the majority or legally required vote is attainable; the fact that the board Members may not agree is immaterial. 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 Supervisor for North Coventry Township, E. Kent High ( "High ") is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. High's son is a member of his immediate family and High's son's farming operation is a business with which High and his son are associated. High would be prohibited from using the authority of his office as a Township Supervisor, or confidential information obtained by being in that position, for the private pecuniary benefit of himself, his son, or the son's farming operation. Based upon the facts which have been submitted, no conflict of interest would exist for High as to the zoning application or related approvals for parcels previously leased by High /his son for farming, conditioned upon the assumption that there would in fact be no use of authority of office or confidential information by High for a prohibited private pecuniary benefit. Absent any actual or attempted private pecuniary benefit, the essential elements for a violation of Section 1103(a) would not exist. High would not transgress Section 1 103(a) of the Ethics Act by voting against his or his son's interests, assuming there would be no other basis for a conflict of interest. Since the North Coventry Township Board of Supervisors is a five - member board, three Supervisors would have to have a conflict under the Ethics Act in order to make the majority or other legally required vote of approval "unattainable" so as to invoke the voting conflict exception of Section 1 103(j). The fact that the Supervisors without a conflict may not agree would not make the required vote "unattainable." Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1 107(1 1), an Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith Hennessey, 99 -637 December 15, 1999 Page 7 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 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. DodlFo Chief Counsel orfr