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HomeMy WebLinkAbout00-516 CarlsonMichael D. Kracht, Esquire Weber, Kracht & Chellew 847 West Market Street P.O. Box 258 Perkasie, PA 18944 ADVICE OF COUNSEL February 14, 2001 01 -516 Re: Conflict; Public Official /Employee; Borough; Council Member; Vote; Water Line Extension; Members Owning Properties In Area of Water Line Extension. Dear Kracht: This responds to your letter of January 11, 2001, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act"), 65 Pa. .S. §1101 et seq., presents any prohibition or restrictions upon borough council members as to participating in council actions regarding a public water service extension plan when the council members own properties in the area to be serviced. Facts: As Solicitor for Dublin Borough, you request an advisory on behalf of the following Council Members: Robert S. Carlson ( "Carlson "), Beverlee Hillman ( "Hillman "), Russell Rodgers ( "Rodgers "), and Tina Supplee ('Supplee "). A significant number of homes in Dublin Borough, including the homes owned by the four Council Members named above, are not served by public water. Council intends to consider a plan to extend public water throughout the remainder of the Borough so that all Borough residents will be served by public water. You state that the individuals who would receive public water under the plan would probably be asked to cover some of the costs. Given the foregoing facts, you ask whether Carlson, Hillman, Rodgers and Supplee would have a conflict and be required to abstain from deliberating and voting on the public water service extension plan. Discussion: It is initially noted that ursuant 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 Kracht 01 -516 February 14, 2001 Page 2 been submitted. It is the burden of the re uestor to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. § §1107(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As Members of the Dublin Borough Council, Carlson, Hillman, Rodgers, and Supplee are public officials as that term is defined in the Ethics Act, and hence they are subject to the provisions of that Act. Section 1103(a) of the Ethics Act provides: 41103. 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: 41102. 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. 65 Pa.C.S. §1102. 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. 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: Kracht 01 -516 February 14, 2001 Page 3 $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 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. If a matter would come before Dublin Borough Council that would result in a financial gain to Carlson, Hillman, Rodgers, or Supplee, a member of their immediate families, or a business with which they or a member of their immediate families is associated, they would have a conflict and be required to abstain and observe the disclosure requirements of Section 11030) of the Ethics Act as set forth above. Having established the above general principles, your inquiry shall now be addressed. Carlson, Hillman, Rodgers, and Supplee, who own their residences in the area that would be affected by the water service extension plan, would have a conflict as to such plan if connecting to the public water system would increase the values of their properties. In such a case, Carlson, Hillman, Rodgers, and Supplee would be required to abstain from participating in Board action as to the plan because such participation would result in a private pecuniary benefit to them. The abstention requirement would extend to voting, discussing, deliberating, conferring with others, lobbying for a particular result or Kracht 01 -516 February 14, 2001 Page 4 engaging in other uses of authority of office. This is true because the use of authority of office encompasses all of the tasks needed to perform the functions of a given position. See Juliante, Order 809. Further, Carlson, Hillman, Rodgers, and Supplee would be required to observe the disclosure requirements of Section 11030) of the Ethics Act. Assuming that connecting to the public water system would increase the value of the properties owned Carlson, Hillman, Rodgers, and Supplee and any participation by them would result in a private pecuniary benefit, they would nonetheless be permitted to participate in Board action if either of the following would apply: the de minimis exclusion under Section 1103(a), the class /subclass exclusion under Section 1103(a), or the voting exception under Section 1103(j). As to the Section 1103(a) exclusions, the de minimis exclusion would not apply since the water service extension plan would not have an economic consequence that would be insignificant. As to whether the class /subclass exclusion to the statutory definition of "conflict of interest" would apply, only general guidance may be given. In order for the class /subclass exclusion to apply, Carlson, Hillman, Rodgers, or Supplee, a member of their immediate families, or a business with which they or a member of their immediate families is associated, would have to be in a class /subclass consisting of more than one person and be affected to the same degree as other members of the class /subclass. In such a situation, Section 1103(a) would not prohibit Carlson, Hillman, Rodgers, or Supplee from participating in a matter even if such matter would result in a financial benefit, provided that such action would impact upon them, a member of their immediate families, or a business with which they or a member of their immediate families is associated to the same degree as all of the other members of the class /subclass. Applying the above to the instant matter, the properties owned by Carlson, Hillman, Rodgers, and Supplee would have to be affected in value to the same degree as all other property owners in the class /subclass. Such a determination could only be made through a comparison of real estate appraisals of the affected properties. However, since you have not presented any appraisals with your request, it is not possible to determine as to the impact of the public water service extension plan upon the value of the properties owned by Carlson, Hillman, Rodgers, and Supplee and to what extent they would be affected as compared to other members of the class /subclass. In Laser, Opinion 93 -002, which involved a township supervisor who resided next to property that was subject to a proposed development, the Commission considered whether the supervisor would have a conflict of interest under Section 3(a) of the Ethics Law so as to prohibit his participation in matters pertaining to the development, or whether he would fall within the class /subclass exclusion. The Commission held that in the absence of appraisals, a determination could not be made as to whether the value of the supervisor's property would be affected to the same degree as that of all other property owners in the class /subclass. Because the impact upon the value of the property in question was speculative due to a factual insufficiency, the Commission did not (and could not) reach a conclusion as to whether a conflict existed. Since a factual insufficiency exists in the instant matter, this Advice, as it pertains to the class /subclass exclusion under Section 1103(a) of the Ethics Act, is necessarily limited to providing the above general guidance. Even if the class /subclass exclusion under Section 1103(a) of the Ethics Act would be inapplicable, Carlson, Hillman, Rodgers, and Supplee would be permitted to vote if they would comply with the requirements of Section 11030) of the Ethics Act. It is noted that Dublin Borough is apparently comprised of seven council members, of whom four may have conflicts under the Ethics Act. 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 Kracht 01 -516 February 14, 2001 Page 5 case of the Dublin Borough Council, a seven - member board, four Council Members would have to have a conflict under the Ethics Act in order to make the majority or other legally required vote "unattainable." Assuming Carlson, Hillman, Rodgers, and Supplee would have a conflict based upon an increase in property values, in such an instance, the majority or other legally required vote would be "unattainable" and therefore, they would be permitted to vote if proper disclosures would be made under the voting exception of Section 11030) of 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 respective municipal code. Conclusion: As Members of the Dublin Borough Council, Robert S. Carlson Carlson "), Beverlee Hillman ( "Hillman "), Russell Rodgers ( "Rodgers "), and Tina Supplee Supplee") are public officials subject to the provisions of the Public Official and Employee thics Act ( "Ethics Act "), 65 Pa.C.S. 1101 et seq. Pursuant to Section 1103(a) of the Ethics Act, if a matter would come before Dublin Borough Council that would result in a financial gain to Carlson, Hillman, Rodgers, or Supplee, a member of their immediate families, or a business with which they or a member of their immediate families is associated, they would have a conflict and be required to abstain and observe the disclosure requirements of Section 11030) of the Ethics Act as set forth above. Carlson, Hillman, Rodgers, and Supplee, who own their residences in the area that would be affected by the water service extension plan, would have a conflict as to such plan if connecting to the public water system would increase the value of their properties. In such a case, Carlson, Hillman, Rodgers, and Supplee would be required to abstain from participating in Board action as to the plan because such participation would result in a private pecuniary benefit to themselves. Assuming Carlson, Hillman, Rodgers, and Supplee would have a conflict based upon an increase in the value of their properties, they could participate in Board action as to the public water service extension plan if they would be in a class /subclass consisting of more than one person and be affected to the same degree as other members of the class /subclass. Real estate appraisals would be necessary to determine whether the properties owned by Carlson, Hillman, Rodgers, and Supplee would, in fact, be affected to the same degree. Even if the class /subclass exclusion would be inapplicable, Carlson, Hillman, Rodgers, and Supplee would be permitted to vote if they would comply with the requirements of Section 11030) of the Ethics Act. In the case of the Dublin Borough Council, a seven - member council, four Council Members would have to have a conflict under the Ethics Act in order to make the majority or other legally required vote "unattainable." Assuming that Carlson, Hillman, Rodgers, and Supplee would have a conflict as to the plan, they would be permitted to vote if proper disclosures would be made under the voting exception of Section 11030) of the Ethics Act. 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. Kracht 01 -516 February 14, 2001 Page 6 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