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HomeMy WebLinkAbout92-602STATE ETHICS COMMISSION 3 FINANCE BUILDING P.O: BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 17, 1992 John Philip Diefenderfer, Esquire 92 -602 Stuckert and Yates One South State Street P.O. Box 70 Newton, PA 18940 Re: Conflict, Public Official /Employee, Member, Borough Planning Commission, Immediate Family, Property Owner, Sidewalk Study. Dear Mr. Diefenderfer: This responds to your letter of May 14, 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 immediate family members who serve on a borough planning commission with regard to a planning commission study concerning requiring borough property owners to install sidewalks, where one of these individuals owns residential property in the borough and has received a notice to install sidewalks. Facts: As Solicitor for Dublin Borough, Bucks County, Pennsylvania, you request an advisory from this Commission on behalf of Mr. Russell Rodgers and his daughter, Ms. Ronda Rodgers, who are both current members of the Dublin Borough Planning Commission. You state that Mr. Russell Rodgers and Ms. Ronda Rodgers reside at 114 South Main Street, Dublin, Pennsylvania 18917, which property Mr. Rodgers owns. The property has frontage on both South Main Street and another street. Ms. Rodgers does not own real estate in Dublin Borough. Notices were recently sent to certain property owners, including Mr. Rodgers, regarding the requirement by Borough Council that certain property owners install sidewalks. You state that this requirement has resulted in public discussion and friction, leading to a vote of Dublin Borough Council to have the Planning Commission study-the issue of sidewalks Borough -wide and develop a John Philip Diefenderfer, Esquire June 17, 1992 Page 2 recommendation (plan) for Borough Council. There is an existing ordinance dating back many years, requiring the installation of sidewalks upon notice to property owners. You state that the Ordinance has a checkered career of "enforcement," even with regard to new development. Noting public discussions involving conflict of interest, you state that Mr. Rodgers and Ms. Rodgers seek an advisory as to whether, by participating in the Planning Commission Borough -wide study of the above issue, either of them or both of them may have a conflict of interest under the Ethics Law. A copy of Dublin Borough Ordinance No. 87 which created the Planning Commission has been submitted and is incorporated herein by reference. The powers and duties of the Dublin Borough Planning Commission are set forth as follows: SECTION 7. POWERS AND DUTIES -- The Commission shall have the power and shall be . required to: (a) Review and maintain an up to date comprehensive plan for the development of the Borough; (b) Maintain and keep on file records of its action. A11 records and files shall be maintained in the possession of Borough Council; (c) Review and maintain an up to date official map of the Borough, including existing and proposed public streets, water courses, public grounds, etc., and make recommendations to Borough Council on proposed changes in such map; (d) Review and maintain an up to date zoning ordinance, and make recommendations to Borough Council on proposed amendments; (e) Prepare and administer subdivisions and land development regulations for the Borough, and make recommendations to Borough Council on proposed amendments; further, until such time as Borough Council adopts a subdivision ordinance to receive and consider at a regular public meeting any and all . proposed subdivisions and /or land development plans, making appropriate recommendations. to John Philip Diefenderfer, Esquire June 17, 1992 Page 3 Borough Council; (f) Prepare and administer planned residential development regulations for the Borough, and make recommendations to Borough Council on proposed amendments; (g) Review and maintain an up to date : building code for the Borough and make recommendations to Borough Council on proposed amendments; and (h) Promote public interest in, and understanding of, the comprehensive plan and .purpose of municipal planning generally. Ordinance No. 87, S7 at 2 -3. Discussion: The powers and duties of the Dublin Borough Planning Commission as set forth in Dublin Borough Ordinance No. 87 at Section 7 are such as to bring the Planning Commission members within the definition of "public official" as set forth in the Ethics Law, 65 P.S. 5402, and the Regulations of this Commission, 51 Pa. Code X1.1. Thus, as Members of the Dublin Borough Planning Commission, Mr. Russell Rodgers and Ms. Ronda Rodgers are public officials as that term is defined under the Ethics Law, and hence each 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 of 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 fiot include an action having a John Philip Diefenderfer, Esquire June 17, 1992 Page 4 de minin: 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. "Immediate family." A parent, spouse, child, brother or sister. 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 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 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 Ow hunber of members of the John Philip Diefenderfer, Esquire June 17, 1992 Page 5 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 applying the above provisions of the Ethics Law to the circumstances which you have submitted, pursuant to Section 3(a) of the Ethics Law, 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 this case, there would not be a conflict of interest for Mr. Rodgers or Ms. Rodgers assuming that the exclusionary language set forth in the definition of "conflict" or "conflict of interest" applies. You are cautioned that for the exclusionary language to apply, there must be a true subclass of affected property owners containing more than one member with Mr. Rodgers being affected to the same degree as other members. If Mr. Rodgers would be uniquely affected by the sidewalk issue, such as, for example, if he were the only property owner whose property bordered more than one street, or if his property were significantly larger or of a different character than the others which would be affected by the sidewalk issue, the exclusionary language may not apply and a conflict of interest could arise for both Mr, Rodgers and Ms. Rodgers. For example, see, Mihalik, Opinion 90 -002; see also, Mlakar, Advice 91- 523. Thus, conditioned upon the assumption that Mr. Rodgers would be merely one member of a true subclass of property owners who John Philip Diefenderfer, - Esquire June 17, 1992 Page 6 .would be affected by the sidewalk issue to be studied by the Planning Commission, and that he would be affected to the same degree as all other members of the subclass, neither Mr. Rodgers nor Ms. Rodgers would have a conflict of interest as to the Planning Commission study on the sidewalk issue. The- propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability 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 Borough Code. Conclusion: As Members of the Dublin Borough Planning Commission, Mr. Russell Rodgers and Ms. Ronda Rodgers are public officials etbject to the provisions of the Ethics Law. Conditioned upon the assumption that Mr. Rodgers would be a member of a true subclass of property owners who would be affected by the sidewalk issue to be studied by the Planning Commission, and that Mr. Rodgers would be affected to the same degree as all other members of that subclass, neither Mr. Rodgers nor Ms. Rodgers would have a conflict Of interest in the matter of the Dublin Borough Planning Commission's Borough -wide study of the sidewalk installation issue. 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. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full 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 5242. Vincent . Dopko Chief Counsel