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HomeMy WebLinkAbout21-550 ConfidentialPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov ADVICE OF COUNSEL September 23, 2021 21-550 This responds to your letter dated [REDACTED], by which you requested a confidential advisory from the Pennsylvania State Ethics Commission ("Commission"). Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon an individual serving as a [PUBLIC OFFICIAL] of a [GOVERNMENTAL BODY] with regard to voting on a Land Development Plan or other land development submission(s) involving a developer's Proposed Development, where the individual owns property that the developer would purchase and develop as part of the Proposed Development. Brief Answer: YES. The individual would have a conflict of interest pursuant Section 1103(a) of the Ethics Act with regard to voting on the Land Development Plan or other land development submission(s) pertaining to the Proposed Development. Facts: You request a confidential advisory from the Commission on behalf of [INDIVIDUAL]. You have submitted facts that may be fairly summarized as follows. [INDIVIDUAL] is a [PUBLIC OFFICIAL] of the [GOVERNMENTAL SUBDIVISION], located in [REDACTED] County, Pennsylvania. The [GOVERNMENTAL BODY] consists of three Members. [INDIVIDUAL] owns real property (the "Property") that is located in the [GOVERNMENTAL SUBDIVISION]. A developer named [REDACTED] (the "Developer") Confidential Advice, 21-550 September 23, 2021 Page 2 proposes to purchase the Property and adjacent parcels in order to develop them and construct warehouses (the "Proposed Development"). The Developer previously submitted a land development plan involving the Property and other parcel(s) (the "Land Development Plan"), which is currently being reviewed as a preliminary plan by the [GOVERNMENTAL SUBDIVISION] Planning Commission. You state that as legal counsel, you have advised [INDIVIDUAL] of his/her potential conflict, and as such he/she has not voted, motion, or seconded any motion on any items involving the Proposed Development. Based upon the above submitted facts, you seek guidance as to the following questions: (1) Whether [INDIVIDUAL] would have a conflict of interest with regard to voting on the Land Development Plan or other land development submission(s) pertaining to the Proposed Development as a result of his/her ownership of the Property; and (2) To the extent [INDIVIDUAL] does have a conflict of interest with regard to voting on the Land Development Plan or other land development submission(s) pertaining to the Proposed Development, what procedures for voting would be permitted under the Ethics Act if another Member of the [GOVERNMENTAL BODY] would also have a conflict of interest with regard to voting on the Land Development Plan or other land development submission(s) pertaining to the Proposed Development. 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 requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all material facts. As a [PUBLIC OFFICIAL] of the [GOVERNMENTAL BODY], [INDIVIDUAL] is a public official subject to the provisions of the Ethics Act. Sections 1103(a) and 11030) of the Ethics Act provide: § 1103. Restricted activities (a) Conflict of interest. --No public official or public employee shall engage in conduct that constitutes a conflict of interest. 0) 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 Confidential Advice, 21-550 September 23, 2021 Page 3 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. §§ 1103(a), 0). The following terms related to Section 1103(a) 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. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, a public official/public employee is prohibited from using Confidential Advice, 21-550 September 23, 2021 Page 4 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/herself, any member of his/her immediate family, or a business with which he/she or a member of his/her immediate family is associated. The use of authority of office is not limited merely to voting but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. In each instance of a conflict of interest, a public official/public employee would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting conflict. In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. Based upon the submitted fact that [INDIVIDUAL] owns the Property, which would be purchased and developed by the Developer as part of the Proposed Development, you are advised that [INDIVIDUAL] would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting on the Land Development Plan or other land development submission(s) pertaining to the Proposed Development. (It is noted that the submitted facts do not suggest any potential applicability of the class/subclass exclusion to the definition of "conflict" or "conflict of interest.") Subject to the voting conflict exceptions of Section 11030) of the Ethics Act, [INDIVIDUAL] would be required to abstain fully from participation in each instance of a conflict of interest. The two voting conflict exceptions contained in Section 11030) of the Ethics Act are strictly limited to voting and do not authorize an individual with a conflict to make a motion to put the matter in a posture for a vote. When two members on a three -member board would have conflicts of interest, only the non -conflicted member could make a motion. Since the non - conflicted member could not second his own motion and it would be otherwise impossible to obtain a second to the motion, a conflicted member, having previously abstained and disclosed his conflict, could then second the motion if he would so choose. A conflicted member could not discuss or advocate as to the motion. A conflicted member could only vote on the motion. Cf., Confidential Opinion, 04-003. Therefore, where [INDIVIDUAL] and a second Member of the [GOVERNMENTAL BODY] would have conflicts of interest with regard to voting on the Land Development Plan or other land development submission(s) pertaining to the Proposed Development, only the third, non -conflicted Member of the [GOVERNMENTAL BODY] could make a motion. If such a motion would not be made, there would be no opportunity for a motion to be seconded. If such a motion would be made, [INDIVIDUAL], having previously abstained and disclosed the conflict, could then second the motion if he would so choose. [INDIVIDUAL] could not discuss or advocate Confidential Advice, 21-550 September 23, 2021 Page 5 as to the motion. [INDIVIDUAL] could only vote on the motion. Cf., Confidential Opinion, 04- 003. 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 [PUBLIC OFFICIAL] of the [GOVERNMENTAL BODY], [INDIVIDUAL] is a public official subject to the provisions of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa. C. S. § 1101 et seq. Based upon the submitted fact that [INDIVIDUAL] owns the Property, which would be purchased and developed by the Developer as part of the Proposed Development, you are advised that [INDIVIDUAL] would have a conflict of interest under Section 1103 (a) of the Ethics Act with regard to voting on the Land Development Plan or other land development submission(s) pertaining to the Proposed Development. Subject to the voting conflict exceptions of Section 11030) of the Ethics Act, [INDIVIDUAL] would be required to abstain fully from participation in each instance of a conflict of interest. Pursuant to Section 1107(11) of the Ethics Act, 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 requester has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. This letter will be made available as a public record. 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. RespectfullyaCounse