HomeMy WebLinkAbout94-625 JohnsonDavid R. Johnson, Supervisor
152 Airlane Drive
Hookstown, PA 15050
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1 610
ADVICE OF COUNSEL
November 15, 1994
94 -625
Re: Conflict, Public Official /Employee, Township Supervisor, Real
Estate, Sale of Residence, Noncomplying Subdivision.
Dear Mr. Johnson:
This responds to your letter of October 13, 1994 in which you
requested advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Law
presents any prohibition or restrictions upon a township supervisor
with regard to voting to expend township funds to bring roads and
improvements in the subdivision in which the supervisor resides
into compliance with the law.
Facts: As a Supervisor for Hanover Township in Beaver County,
Pennsylvania, you request an advisory concerning official action to
bring the roads and improvements in the subdivision where you
reside into compliance with the law. You state that recently a
question was raised in the township concerning whether it was
appropriate for you to vote on paying the township solicitor and
the engineering firm of Lennon, Smith and Sourelet (the township
engineers) for engineering and legal services related to two roads
located in the subdivision in which you live, which is known as
Hanny Beaver Estates. Noting a prior telephone conversation with
a Commission staff member, you have submitted various information
regarding the events that occurred, which information includes not
only your letter of inquiry but voluminous attachments pertaining
to various subdivision plans, all of which attachments shall not be
detailed herein but rather are incorporated herein by reference.
However, it is specifically noted that among the submitted
documents there is reference to a specific concern with your lot,
Lot #44, with regard to unstable soils — which under certain
conditions could slip and slide — as well as the need for erosion
and sediment control measures (letter from Robert P. Zapsic,
Executive Director of the Board of Beaver County Commissioners to
Johnson, David R., 94 -625
November 15, 1994
Page 2
the Hanover Township Board of Supervisors dated September 21,
1984).
You have provided the following synopsis of the events which
pertain to your request:
1.. You purchased the lot where you now live in
November of 1984„
2. During the early 1980's through 1988, you state
that it appears from the documents which you have
submitted that the prior supervisors did not follow
the Pennsylvania Municipalities Planning Code,
Beaver County Planning Commission recommendations,
or the Township Subdivision and Land Development
Ordinances as they pertain to roads and
improvements, not just for the Nanny Beaver Estates
plan where you own lot #44, but also in the. Short
subdivision and Cobblestone subdivision which were
developed by other developers.
3. On July 14, 1991 a letter was sent to the Chairman
of the Board of Supervisors from a Mr. Brent Tieke
concerning the Board's adherence to ordinances.
4. On September 10, 1991 the Board of Supervisors
authorized legal action against Larry Short and
William Jedinak /Jednak regarding escrow agreements
and the roads.
5. You took office as Supervisor on January 1, 1992.
Soon after you took office, the township was sued
by residents in the Short Subdivision for failure
of the township to abide by its ordinances or
construct the road per the escrow agreement. After
spending some money on legal fees and engineering
fees, you were able to get the developer to put in
the roads.
6. The township was named in a lawsuit last year by a
resident below the Cobblestone subdivision, which
lawsuit basically stated that the township was not
following its ordinances by allowing storm -water
runoff from a plan approved by the supervisors.
Once again, the township spent money on legal and
engineering services. An agreement was reached and
that case has been put to rest.
7. In 1993 and 1994 letters were sent to Mr. William
Jedinak /Jednak requesting a meeting concerning the
Johnson, David R., 94-625
November 15, 1994
Page 3
escrow agreement and roads as spelled -out in the
Subdivision and Land Development Ordinance and the
Pennsylvania .Municipalities Planning Code and
escrow agreement. You state that this should be
reviewed each year as the cost of construction goes
up and the escrow agreements may have to be
amended.
8. On 'Tune 28, 1994 due to your employer's (USAir
Inc.) financial condition, it appeared that early -
retirement might be a possibility. You entered
into an agreement of sale for your house. You
state that the sale IS NOT CONTINGENT UPON ANY ROAD
IMPROVEMENTS.
9. In July or August the township solicitor advised
the Board of Supervisors that it should have the
engineering work done to prepare for litigation, as
the engineering was not done prior to final plat
plan approval as required by the Subdivision and
Lad Development Ordinances in the 1980's.
14. The township has received complaints from residents
for several years. Included among your enclosures
are two letters, one from Jake Mitchard dated
September 13, 1994 and the other from Brent Tieke
dated July 14, 1991. The letters outline the
problems facing the Board of Supervisors concerning
the roads and escrow agreements. You have also
submitted an agreement dated October 25, 1988
between Jack Mitchard and William Jedinak /Jednak
concerning the roads in Ranny Beaver Estates.
11. As a Supervisor, you feel that the Board of
Supervisors was lucky in reaching settlements on
the Short Subdivision and the Cobblestone
Subdivision litigation, especially in view of what
you characterize as the Board's apparent failure to
follow ordinances, the advice of the Beaver County
Planning Commission, and the Pennsylvania
Municipalities Planning Code. You feel that the
Board of Supervisors may again be sued by residents
and that it will probably have to spend money on
litigation and engineering as it has on the other
atibdiyisions to rectify past problems. You note
the Township Engineer's letter dated August 5, 1988
which you have submitted in the packet of documents
incorporated herein by reference.
You request a @pedited advisory concerning your prospective
Johnson, David 94 -625
November 15, 1994
Page 4
voting to spend the money as outlined above to resglve, this issue.
You note that next month,, you must vote to pay the. bills and vote
on some other issues. You. also st tte that if' p_a t praactices lave
some ethical implications, you would{ be interested: in commentary as
you believe_ that this "trail of disregardm for the towns 4p
ordinances has been a financial burden on your community.
Based, upon, all of the above you request an advisory from t. e
State: Ethics Commission.
on.
Discussion: It is initially noted that pursuant to Sections 7 . (i 0r)
and 7(11) of. the Ethics Law,, 65 P.$.: 5/407(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 nat been submitted. , It is the
burden of the requestor to truthfully disclose all of the material
facts relevant to the inquiry. 65 P.S. 55407(10), (11). An
advisory only affords a defense to the extent the requestor- has
truthfully disclosed all of the material facts.
It is further initially noted that no past conduct may be
addressed in. this advisory.. A reading of Sections 7(10) and (11)
of the Ethics Act makes it clear that an opinion /advice may be
given only as to prospective (future) conduct. Zrf the activity in
question has already occurred the Commission may not issue an
opinion /advice but any person may then submit a signed and sworn
complaint which will be investigated by the Commission if there are
allegations of Ethics Law violations by a person who is subject to
the Ethics Law.
As a Township Supervisor for Hanover Township in Beaver
County, Pennsylvania, you are a public official, as that term is
defined under the Ethics Law, and hence you Ore subject to the
provisions of that law.
Section 3(a) of the Ethics Law provides:
Section 3. Restricted Activities.
(a) No public official or public
employee shall engage in conduct that
constitutes a conflict of interest.
The following terms are defined in the Ethics Law as follows:
Section 2. Definitions.
"Conflict or conflict of interest." Use
Johnson, David R., 94 -625
November 15, 1994
Page -5
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 %ha.s immediate family or a business with
Which he -or a : member ,of his immediate family
is aaso li ted. " ";Conflict" or "conflict of
interest" does not include an action haVing a
de miniini.s 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.
In addition, Sections 3(b) and 3(c) of the Ethics Law provide
in part that no person shall offer to a public official /employee
any. #ding of monetary value and no public official /employee shall
solicit or accept anything of monetary value based upon the
and.rstanding that the vote, official action, or judgement of the
public official /employee would be influenced thereby. Reference is
made, to these provisions of the law not to imply that there has
beef or will be any transgression thereof but merely to provide a
complete response to the question presented.
Section 3(j) of the Ethics Law provides as follows:
Section 3. Restricted activities
(j) Where voting conflicts are not
otherwise addressed by the Constitution of
Pennsylvania or by any 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
Johnson, David.R., 94 -625
November 15, 1994
Page 6
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.
If a conflict exists, Section 3(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 Law, then in that event partic is
pessible provided the disclosure requirements noted'above are
foil See, Mlakar, Advice 91-523-S.
In apply ng the above provisions of the Ethi c$ I to the
circuthstances Which you have submitted, pursuant to Section 3 of
the Ethics Law, a public official /public employee L.s prohibited
frdm using the authority of public Offioe /employment or
confidential information received by holding such a public position
for the private pecuniary benefit of the piib .a.p official/public
employee hitns elf , any member of his immediate 'family, or } business
With - which he or a member of his immediate family is associated.
In this case, you have affirmatively represented ,tkat your .own
residence in the - Hantry 3eaxrer Estates Subdivision 1.5 under - contract
for `sale, and that the sale is not contingent upon any ROAD
IMPto NTS . You have not spec if ica 11y stated, but this advice
shall assume and shall be 'conditioned upon the :assumptions that
regard to unstable 'moil conditions of Lot #44) whih example, w with
(1) there are "no other contingencies to the sale (for
g which would be
Johnson, David R., 94 -625
November 15, 1994
Page 7
affected any official action by the Board of Supervisors as'to
that Subdivision's noncumpliahce with the Pennsylvania
Municipalities Planning Code, the Bever County Planning Commission
recommendations, and /or the TOwwitship Subdivision and Land
Development Ordinances; and (2 - ) that the sale of your home does in
fact take place under the terms of the existing contract for its
sale. Based upon the expressed assumptions and conditions noted
herein, your prospective use of authority of office of voting to
spend money for resolving these issues of noncompliance by Hanny
Beaver Estates would not result in a private pecuniary benefit
under Section 3(a), and therefore would not be prohibited by
Section 3(a) of the Ethics Law.
The propriety of the proposed conduct has only been addressed
under the Ethics Law; the applicability of any other statute, code,
ordinance, regulation or other code of conduct other than the
Ethics Law has not been considered in that they do not involve an
interpretation of the Ethics Law. Specifically not addressed
herein is the applicability of the Second Class Township Code.
Conclusion: As a Township Supervisor for Hanover Township in
Beaver County, Pennsylvania, you are a public official subject to
the provisions of the Ethics Law. Conditioned upon your
affirmative representations and the express assumptions that your
residence at Lot #44 in Hanny Beaver Estates is under contract for
sale; that the sale is not contingent upon any road improvements or
other matters that would be affected by official action by the
Hanover Township Board of Supervisors as to the noncompliance of
that subdivision with the Pennsylvania Municipalities Planning
Code, Beaver County Planning Commission recommendations, and /or the
Township's Subdivision and Land Development Ordinances; and that
the sale of your home is in fact completed under the terms and
conditions of the existing contract, Section 3(a) of the Ethics Law
would not preclude you from participating in voting to "spend money
to resolve the issues of noncompliance by Haf3ny Beaver Eatatee as
to the aforesaid legal requirements. Lastly, the propriety of the
proposed conduct has only been addressed under the Ethics Law.
Pursuant to Section 7(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 assts complained of in relianfce
on the Advice given.
such.
This letter is a public record and will be made available as
Finally, if you disagree with this AdVi de yr if yon have
Johnson, David R., 94 -625
November 15, 1994
Page 8
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
Cal/ mission.
Any such appeal must be in writing and must be actually
received at the Commission within fifteen (15) 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 b r PAZ transmission:. (717- 787- 0806).
Failure to file such an appeal at the Commission within fifteen
(15) days may result in the dismissal of the appeal.
;c:'erely,
Vincent . Dop
Chief Counsel