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Home My WebLink About02-612 GriggsJason Griggs 25 Heffner Road Limerick, PA 19468 ADVICE OF COUNSEL October 23, 2002 02 -612 Re: Public Official; Conflict of Interest; Chairman; Township Planning Commission; Advisory Body. Dear Mr. Griggs: This responds to your letter dated September 19, 2002 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Ha.G.S. § 1101 et seq., would impose any prohibition or restrictions upon a chairman of a township planning commission with respect to matters before the planning commission pertaining to a preliminary land development plan submitted by the chairman. Facts: You are the Chairman of the Limerick Township Planning Commission c "Planning Commission "). You state that the duties of the Planning Commission are to make recommendations to the governing body on land development projects, zoning hearing board and conditional use advisories." You further state that the Planning Commission is responsible for making recommendations on zoning amendments and proposing changes or additions to the current Subdivision and Land Development Ordinance and Zoning Code. You note that final approval lies with the Limerick Township Board of Supervisors. You have submitted a preliminary land development plan for consideration. You ask whether as a Planning Commission Member /Chairman, you would have a conflict of interest as to such plan and whether you must excuse yourself from "related matters" and abstain from acting in your official capacity during the discussion of your project. Discussion: It is initial! noted that pursuant to Sections 1107 (10) and 1107(11) of the iciEfF s t,, 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 been submitted. It is the burden of the requestor 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. Griggs 02 -612 October 23, 2002 Page 2 Before your question of whether you would have a conflict of interest under the Ethics Act with respect to your preliminary land development plan may be considered, it is necessary to make a determination of your status under the Ethics Act. The Ethics Act defines the term "public official" as follows: § 1102. Definitions "Public official." Any person elected by the public or elected or appointed by a governmental body or an appointed official in the executive, legislative or judicial branch of this Commonwealth or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense or to otherwise exercise the power of the State or any political subdivision thereof. 65 Pa.C.S. § 1102 (Emphasis added). The regulations of the State Ethics Commission similarly define the term "public official" and set forth the following additional criteria: (i) The following criteria will be used to determine if the exception in this paragraph is applicable: (A) The body will be deemed to have the power to expend public funds if the body may commit funds or may otherwise make payment of monies, enter into contracts, invest funds held in reserves, make loans or grants, borrow money, issue bonds, employ staff, purchase, lease, acquire or sell real or personal property without the consent or approval of the governing body and the effect of the power to expend public funds has a greater than de minimis economic impact on the interest of a person. (B) The body will be deemed to have the authority to otherwise exercise the power of the Commonwealth or a political subdivision if one of the following exists: (I) The body makes binding decisions or orders adjudicating substantive issues which are appealable to a body or person other than the governing authority. (11) The body exercises a basic power of government and performs essential governmental functions. (III) The governing authority is bound by statute or ordinance to accept and enforce the rulings of the body. (IV) The body may compel the governing authority to act in accordance with the body's decisions or restrain the governing authority from acting contrary to the body's decisions. (V) The body makes independent decisions which are effective without approval of the governing authority. Griggs 02 -612 October 23, 2002 Page 3 (VI) The body may adopt, amend and repeal resolutions, rules, regulations or ordinances. (VII) The body has the power of eminent domain or condemnation. (VIII)The enabling legislation of the body indicates that the body is established for exercising public powers of the Commonwealth or a political subdivision. (ii) The term does not include judges and inspectors of elections, notary publics and political party officers. (iii) The term generally includes persons in the following offices: (A) Incumbents of offices filled by nomination of the Governor and confirmation of the Senate. (B) Heads of executive, legislative and independent agencies, boards and commissions. (C) Members of agencies, boards and commissions appointed by the General Assembly or its officers. (D) Persons appointed to positions designated as officers by the Commonwealth or its political subdivisions. (E) Members of municipal, industrial development, housing, parking and similar authorities. (F) Members of zoning hearing boards and similar quasi-judicial bodies. (G) Members of the public bodies meeting the criteria in paragraph (i)(A). 51 Pa. Code § 11.1. In applying the definition of "public official" and the related regulatory criteria to the question that you have posed, it is initially noted that planning commissions are "planning agencies" as defined by the Pennsylvania Municipalities Planning Code, 53 P.S. §10107. The powers and duties of planning agencies are generally defined at 53 P.S. §10209.1. However, to some extent, the powers and duties of planning commissions may vary. See, e.q., 53 P.S. §10201. Based upon the facts which you have submitted, it would appear that the Planning Commission on which you serve is a purely advisory body; hence, the necessary conclusion is that in your capacity as a Member /Chairman of that Planning Commission, you are not to be considered a "public official" as that term is defined in the Ethics Act. Thus, you are not subject to Section 1103(a), the conflict of interest provision of the Ethics Act. In that Section 1103(a) does not apply to you, your specific inquiry with respect to your preliminary land development plan need not be addressed. The only provisions of the Ethics Act which apply to you are Sections 1103(b) and 1103(c) which apply to everyone. For your information, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public Griggs 02 -612 October 23, 2002 Page 4 official /public employee anything of monetary value and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /public 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. Lastly, 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. Conclusion: In your capacity as Chairman and Member of the Limerick Township Planning Commission ( "Planning Commission "), you are not to be considered a "public official" as that term is defined by the Public Official and Employee Ethics Act ( "Ethics Act "). Accordingly, in that capacity, you are not subject to Section 1103(a), the conflict of interest provision of the Ethics Act. In that Section 1103(a) does not apply to you, your specific inquiry with respect to your preliminary land development plan need not be addressed. Sections 1103(b) and 1103(c) of the Ethics Act apply to everyone. 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. 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