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HomeMy WebLinkAbout00-613 ParavisHonorable Tim Hennessey State Representative 26 Legislative District House of Representatives 141 East Wing, Capitol House Box 202020 Harrisburg, PA 17120 -2020 ADVICE OF COUNSEL October 12, 2000 00 -613 Re: Conflict; Public Official /Employee; Township Supervisor; Zoning; Conditional Use; Member; Organization That Opposes Zoning Change. Dear Mr. Hennessey: This responds to your letter of September 11, 2000 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 with regard to voting on a zoning request and related conditional use requests when the township supervisor is a member of a group of township residents organized to oppose the requested zoning change. Facts: As State Representative for the 26 Legislative District, you seek an advisory on behalf of Andrew Paravis ( "Paravis "), a newly elected Supervisor of North Coventry Township. Your inquiry focuses upon a particular zoning request before the North Coventry Township Board of Supervisors. The zoning request seeks to change an Industrial (1 -1) district to a commercial district which would allow for a shopping center by conditional use. Prior to being elected, Paravis openly opposed this zoning request. Paravis is also a member and a former officer of "North Coventry Residents for Responsible Growth" ( "NRRG "), a group of township residents organized to oppose this particular zoning change and, more generally, to sponsor responsible development within the Township. At public hearings, NRRG has given testimony against the requested zoning change. You state your view that Paravis' expressed opposition to the zoning request would not preclude him from voting as a Township Supervisor on the substantive request. Hennessey, 00 -613 October 12, 2000 Page 2 Nevertheless, you seek an advisory as to whether the Ethics Act would prohibit Paravis from participating as a Township Supervisor as to the zoning request or related conditional use requests, based upon the above facts. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. § §1107(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 Pa.C.S. § 107(10), (11). 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, Andrew Paravis ( "Paravis ") is a public official as that term is defined in the Ethics Act, and hence, Paravis is subject to the provisions of that Act. Section 1103(a) of the Ethics Act provides: § 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. §1103(a). The following terms are defined in the Ethics Act as follows: § 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 Hennessey, 00 -613 October 12, 2000 Page 3 immediate family is a director, officer, owner, employee or has a financial interest. 65 Pa.C.S. §1102. 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 been or will be any transgression thereof but merely to provide a complete response to the question presented. Section 11030) of the Ethics Act provides as follows: § 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. 65 Pa.C.S. §11030). In each instance of a conflict, Section 11030) 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 your inquiry, pursuant to Section 1103(a) of the Ethics Act, it is a conflict of interest for a public official /public employee to use the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public Hennessey, 00 -613 October 12, 2000 Page 4 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. In order for a violation of Section 1103(a) to be found by the State Ethics Commission, each of the above elements must be established by clear and convincing evidence. 65 Pa.C.S. §1108. Based upon the facts which you have submitted, Paravis would not have a conflict of interest under the Ethics Act with regard to the aforesaid zoning request or related conditional use requests because the requisite element of a prohibited private pecuniary benefit would be lacking. There is no indication in your letter of any factual basis for a prohibited private pecuniary benefit, such as, for example, pending litigation involving Paravis. See e.q. DeLano Opinion 88 -008. Absent the statutory elements, Paravis would not have a conflict of interest under the Ethics Act. 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, Andrew Paravis E Paravis") is a public official subject to the provisions of the Public Official and Employee thics Act ( "Ethics Act'), 65 Pa.C.S. §1101 et seq. In the absence of any basis for a prohibited private pecuniary benefit, which is an essential element for a conflict of interest under the Ethics Act, Paravis would not have a conflict of interest under the Ethics Act with regard to a particular zoning request which he has openly opposed, or with regard to related conditional use requests. 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 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. Dopko Chief Counsel