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HomeMy WebLinkAbout92-544STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 24, 1992 Michael L. Mixell, Esquire Brumbach, Mancuso & Fegley, P.C. 50, North Fifth Street P.O. Box 8321 Reading, PA 19603 -8321 92 -544 Re: Conflict, Public Official/Employee, Township Supervisor, Use of Authority of Office or Confidential Information, Business with which Associated, Flea Market, Competition with Business Discussed at Public and Private Meetings. Dear Mr. Mixell: This responds to your letters of November 27, 1991, and February 7, 1992, 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 chairman of a board of township,. supervisors with regara to opening an indoor flea market business at .a location approximately six miles from an existing indoor .flea market, where the existing business has appeared at public and private township meetings and it has been suggested that the chairman would be using confidential information obtained at such meetings to open the competing indoor flea market. Facts: As personal legal counsel to Mr. Thomas Pagerly, Chairman of the Board of Supervisors of South Heidelberg Township in Berks County, Pennsylvania, you seek the advice of the State. Ethics Commission with respect to Mr. Pagerly's proposed business venture. Since transient which you reference. retailers, payment of October 25, 1990, South Heidelberg Township has had a retail business ordinance ( "Ordinance "),, a copy of have submitted and which is incorporated herein by The Ordinance .requires a license for transient including flea market vendors, and requires the a licence fee to the Township. Fox Theatres (Fox) operates a drive -in movie theater in the Township and for_some time has also operated an outdoor flea market at this site during the non- winter months. Durin4 1991, ` Michael L. Mixell, Esquire February 24, 1992 Page 2 Fox and its attorneys began to discuss with the Township its concern with respect to the Ordinance and the amount of the licensing fee, which was set at $20.00 per vendor per year gn March 14, 1991. Fox felt that the licensing ordinance was improper and threatened litigation against, the Township. As a result of the threat of litigation, there were two ..private meetings held at the offices of Thomas Golden, Esquire, the Township Solicitor, on May 29, 1991, and June 20, 1991. Mr. Pagerly has advised you that at those meetings and at the public meetings that followed, Fox successfully convinced the .Township to reduce the amount for the licensing permit from $20.00 to $10.00 per vendor, which reduction was approved on July 11, 1991. You state that although Mr. Pagerly recalls general discussions at the private meetings about the type of business which Fox operated and the request for the reduction in the license fees, he does not recall any specific proprietary information being discussed at either of the private meetings. You do not have precise detailed information regarding.the exact discussions held between Fox and the Township because you are not counsel to the Township. You have requested that Mr. Golden as Solicitor for the Township have the Township Supervisors review this matter and cooperate fully with this Commission with respect to the facts surrounding this issue. You. have submitted a.copy of your letter to Mr.. dated November 27, 1991, which document is incorporated herein reference. You have ,further invited this Commission to contact Attor_zey Golden to discuss this matter with him. You note that Fox also appeared at public township meetings on June 13, 1991, and July 11, 1991, at which Fox discussed its concerns about the ordinance including its belief that the ordinance would have an adverse effect on tenants because of their interest in preserving their privacy. You -state that the minutes of the Township's meetings reflect: the discussions held between Fox, its attorney, Raymond Schlegel Esquire, and the Township. You have submitted unsigned copies of the minutes for June 13, -1991, and July 11, 1991, which documents are incorporated herein by reference. You state that Mr. Pagerly has informed you that there was nothing discussed at the private meetings at the Township Solicitor's office which was not also discussed by Fox and its attorneys at the public Township meetings. You state that in what Mr. Pagerly considers to be an unrelated matter, Mr. Pagerly and /or Pagerly Enterprises, Inc., a corporation fully owned by Mr. Pagerly, is contemplating opening an indoor flea. market in a neighboring municipality. The original proposed location was to be at a vacant Jamesway Store Michael L. Mixell, Esquire February 24, 1992 Page 3 in the immediate vicinity of the outdoor flea market operated by Fox. While the Jamesway Store location was being considered, Fox took the position with Mr. Pagerly that he obtained .confidential information from Fox at the two private meetings with the Township Solicitor. It is Mr. Pagerly's position that there was no confidential information discussed at the private meetings with the Township Solicitor, and that any information discussed at the Township - Solicitor's office was also discussed at the 'public meetings by Fox. Fox threatened to sue Mr. Pagerly and/or his - corporation for injunctive relief and for violations of the Ethcs Law if IMr. Pagerly proceeded with ' the Jamesway project. Mr. Pagerly delayed proceeding with this business venture until an advisory could be received from the Ethics Commission. However, you state that the proposed Jamesway location has been lost because Mr. Pagerly was unable to execute a lease with the Jamesway people due to the : "cloud" of the consideration of the matter by this Commission. At this time, Mr. Pagerly has found another potential location approximately six miles west of the original location, in another municipality. Mr. Pagerly would very much like to sign a lease for the building before he loses that potential location. However, you have advised him to wait until an advisory is issued this Commission. You indicate your belief that an investigation of the facts would confirm that there was no private` - or confidential information discussed at the meetings referenced above. Based upon all of the above, you request an expedited advisory so that Mr. Pagerly will not lose the opportunity to operate a flea market at the second proposed business location. The minutes of the June 13, 1991 and July 11, 1991 meetings provide, in pertinent - part, as follows: There was a% discussion of the amended wording to Ordinance No. 121 proposed by Raymond Schlegel Esquire, on behalf of his client Donald Fox. This proposal suggests that the license and fee be obtained and by the property owner where the retail business operates, not by each individual retail business. The Supervisors do not agree with this proposed change and directed Mr. Golden to inform Mr. Schlegel of their decision. Minutes, South Heidelberg Township, June 13, 1991 . at Michael L. '1ixell, Esquire February 24,1992 Page 4 There was a discussion regarding the license fee for transient retail businesses operating within the Township. Raymond Schlegel, Esquire, representing Donald Fox, - commented that the enforcement of a license fee for vendors at the flea market hosted at the Sinking Spring Drive -In will cause the demise of the flea market. Mr. Schlegel asked the Supervisors to consider an amendment to Ordinance No. 12). that would allow a property owner to purchase a license for a block of vendors that operate on a particular property. The Supervisors will delay final action on this iss•ie until the August 8, 1991, meeting. Minutes, South Heidelberg Township, July 11, 1991 at 2. Discussion: As Chairman of the Board of Supervisors of South Heidelberg Township in Berks County, Pennsylvania, Mr. Thomas Pagerly is a public official as that term is defined under the Ethics Law, and hence he is 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 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 cf himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or Michael L. Mixell, Esquire February 24, 1992 Page 5 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 . m_ ember 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 pubai office or position of public employment. "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. "Financial interest." Any financial interest in a legal, entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. 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 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 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 been or will be any transgression thereof but merely to provide a- complete respon'se to the question presented. Section 3(j) of the Ethics Law provio.s as follows: Section. 3. Restricted activities. Michael L. Mixell, Esquire February 24, 1992 Page 6 (j) 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, publ. =cly 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. 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. Before applying the above provisions of the Ethics Law to the facts that you have submitted, it is necessary to address the nature of an advisory from this Commission. The advice /opinion process requires that the Commission issue the advice /opinion assuming the, submitted facts to be true. The burden is upon the inquirer to truthfully disclose all of the material facts. 65 P.S. §407(11). Indeed, any protection to be afforded based upon acting in reliance upon an Advice is conditioned upon the submission of a good faith request for advice which. discloses Michael L. Mixell, Esquire February 24, 1992 Page 7 truthfully all of the material facts. Id. Thus, to the extent your zequett for advice is Tacking in any factual detail, particularly with 'regard to the dLScussfons which took place at the private meetings with Fox in 'which Mi. Pagerly •participated, this Commission nbt fill in the missing facts for you, and for that reason may not contact Mr. Golden. Mr. ftger* the individual on chose behalf you have submitted the request- for advice, was physically present at these meetings and may be presumed to know what took place and any confidential information to which he may have been privy. Mr. Pagerly has affirmatively represented to this Commission that he does not recall any specific proprietary information being discussed at either of the private meetings. Mr. Pagerly has further represented his . position that there was no confidential information discussed at the private meetings with the ToWnshipp Solicitor, and that any information discussed at the To*nehLp Solicitor's office was also discussed at the public meetings VST Fox. These affirmative representations were made in your letter of November 27, 1991, at page 2. While an affirmative representation as to one's recollection and as . to the position which one - is tak` are a step removed from a clear statement of what actually occurred, these are the facts which you have submitted and these are the facts upon which this Advice shall be based. Conditions upon which this Advice is based include, therefore, the condition that in opening the proposed indoor flea market business, Mr. Pagerly would not be using any confidential information received by holding public office 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 above provisions of the Ethics Law will now be discussed in light of the facts which you have submitted. Section 3(a) of the Ethics Law prohibits a public official/ public employee from using the authority of public office /public employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Section 3(a) applies only to restrict the conduct of the public official /public employee in his public capacity. Section 3(a) does not prohibit public officials /public employees from outside business activities or employment: However, the public official /public employee may not use the Michael L. Mixell, Esquire F'eb'ruary 24, 1992 Page 8 authority of office for the advancement of his o-rn private pecuniary benefit or that of. a business with which he is associated, Pancoe, Opinion 89 -011, and /or to the detriment of competitors, Pepper, Opinion 87 -008.. Similarly, Section 3(a) expressly prohibits the use of confidential information received by holding a public position for such a private pecuniary benefit. Thus, in response to your specific inquiry and subject to the restrictions and qualifications noted above, the Law would not prohibit Mr. Pagerly from opening an indoor flea market in a neighboring municipality and approximately six miles from the Fox flea market location, conditioned upon the express assumption that Mr. Pagerly would not be using confidential information received by holding public office in doing so. The propriety of the proposed ccnduct 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 ClaS$ Township Code. Conclusion: As Chairman of the Board of Supervisors for South Heidelberg Township in. Berks County, Pennsylvania, Mr. Thomas Pagerly is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude Mr. Pagerly from outside employment /business activity subject to the restrictions and qualifications as noted above. This Advice is expressly conditioned upon your affirmative representations and the assumption that Mr. Pagerly would not use any confidential information 'received by holding public office 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. 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 acts complained of in reliance on the Advice given. This letter is a public record and will be made available as Such. Michael L. Mixell, Esquire February 24, 1992 Page 9 Finally, if you disagree with this Advioe or if you have any reason to challenge same, you may re ues that a fi411 Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code §2.12. cerely, `n Vincent J. Dopko Chief Counsel - 7