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HomeMy WebLinkAbout21-561 Confidential PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL November 19, 2021 To the Requester: 21-561 This responds to your letter dated \[REDACTED\], by which you requested a confidential advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the issues presented below: Issue: 1. Where an individual (the Individual) serving on a three-Member \[GOVERNMENTAL BODY\] has a conflict of interest with regard to voting on matters pertaining to a would the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1101 et seq., permit the Individual to second a motion on a matter pertaining to the proposed development if one of the two non-conflicted \[GOVERNMENTAL BODY MEMBERS\] makes the motion and the other non-conflicted \[GOVERNMENTAL BODY MEMBER\] declines to second the motion? Brief Answer: YES. Section 1103(j) of the Ethics Act (pertaining to voting conflict) would permit the Individual to second a motion on a matter pertaining to the proposed development where a second on the motion is not forthcoming because the two non- conflicted \[GOVERNMENTAL BODY MEMBERS\] have opposing views. 2. Pursuant to Section 1103(j) of the Ethics Act, would the Individual be permitted to vote to break a tie vote of the two non-conflicted \[GOVERNMENTAL BODY MEMBERS\] on a matter pertaining to the proposed development? Brief Answer: YES. Section 1103(j) of the Ethics Act would permit the Individual to vote to break a tie if the two non-conflicted \[GOVERNMENTAL BODY MEMBERS\] would (CONFIDENTIAL NOT TO BE DISSEMINATED TO THE PUBLIC) Confidential Advice, 21-561 November 19, 2021 Page 2 cast opposing votes on a matter pertaining to the proposed development, provided that the Individual would initially: (1) abstain from the vote; and (2) fully satisfy the disclosure requirements of Section 1103(j). 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 Member and \[OFFICER\] of the three-Member \[GOVERNMENTAL BODY\] of \[POLITICAL SUBDIVISION\], located in \[REDACTED\] County, Pennsylvania. At this time, the other two \[GOVERNMENTAL BODY MEMBERS\] are \[NAME 1 REDACTED\] and \[NAME 2 REDACTED\]. \[INDIVIDUAL\] owns real property (the Property) that is located in the \[POLITICAL SUBDIVISION\]. A developer named \[REDACTED\] (the Developer) proposes to purchase the Property and adjacent parcels in order to develop them and construct warehouses (the Proposed Development). The \[POLITICAL SUBDIVISION\] recently approved a preliminary land development plan involving the Property and other parcels (the Land Development Plan) which the Developer submitted to the \[POLITICAL SUBDIVISION\]. You note that you previously obtained an Advice of Counsel, Confidential Advice, 21-550, which determined 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. You state that as legal counsel, you have advised \[INDIVIDUAL\] of his conflict of interest, and as such he has not voted, motioned, or seconded any motion on any items involving the Proposed Development. In 2022, \[NAME 3 REDACTED\] will replace \[NAME 1 REDACTED\] on the \[GOVERNMENTAL BODY\]. You state that \[NAME 3 REDACTED\] will not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting on matters pertaining to the Proposed Development. Based upon the above submitted facts, you pose the following questions: 1. Whether \[INDIVIDUAL\] would be permitted to second a motion on a matter pertaining to the Proposed Development if one of the two non-conflicted \[GOVERNMENTAL BODY MEMBERS\] (i.e., \[NAME 3 REDACTED\] or \[NAME 2 REDACTED\]) makes the motion and the other non-conflicted \[GOVERNMENTAL BODY MEMBER\] declines to second the motion; and 2. Whether \[INDIVIDUAL\] would be permitted to vote to break a tie if the two non- conflicted \[GOVERNMENTAL BODY MEMBERS\] would cast opposing votes on a matter pertaining to the Proposed Development. (CONFIDENTIAL NOT TO BE DISSEMINATED TO THE PUBLIC) Confidential Advice, 21-561 November 19, 2021 Page 3 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 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 requester has truthfully disclosed all of the material facts. Section 1103(j) of the Ethics Act provides: § 1103. Restricted activities (j) 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 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(j). 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 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. (CONFIDENTIAL NOT TO BE DISSEMINATED TO THE PUBLIC) Confidential Advice, 21-561 November 19, 2021 Page 4 The exception for breaking a tie vote despite a conflict is available exclusively to members of three-member governing bodies who first abstain and disclose their conflicts as required by Section 1103(j) of the Ethics Act. See, e.g., Garner, Opinion 93-004; Pavlovic, Opinion 02-005. In Garner, supra, the Commission considered the issue of whether, under Section 1103(j) of the Ethics Act, a township supervisor serving on a three-member board would be permitted to second a motion despite a conflict where the two remaining supervisors would have opposing views or where one of the remaining two members would be absent from the meeting. Citing Juliante, Order 809, the Commission first noted that seconding a motion is a use of authority of office. See, Garner, supra. The Commission then stated: However, the General Assembly in enacting Section \[1103(j)\] would not have allowed a public official/employee on a three member board who has a conflict to be able to vote unless a second to the motion could be made so that the matter would be in the posture for a vote. Thus, we believe that since there is a need for a second to a motion in order to make Section \[1103(j)\] of the Ethics Law operative, the General Assembly intended as to three members \[sic\] boards for the public official with a conflict to be allowed to second so that if the other supervisors became deadlocked, the public official could then vote provided the disclosure requirements are satisfied. Garner, Opinion 93-004 at 6. The Commission concluded that Section 1103(j) of the Ethics Act would allow a township supervisor serving on a three-member board to second a motion despite having a conflict where a second is not forthcoming because the two remaining supervisors have opposing views or where one of the other two supervisors is absent. The Commission emphasized that its ruling was expressly limited in its application to three-member boards and to the question of seconding a motion. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As a Member and \[OFFICER\] of the \[GOVERNMENTAL BODY\], \[INDIVIDUAL\] is a public official subject to the provisions of the Ethics Act. As determined in Confidential Advice, 21-550, \[INDIVIDUAL\] would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting on matters pertaining to the Proposed Development. Subject to the voting conflict exceptions of Section 1103(j) of the Ethics Act, \[INDIVIDUAL\] would be required to abstain fully from participation in each instance of a conflict of interest. Section 1103(a) of the Ethics Act would prohibit \[INDIVIDUAL\] from making a motion on a matter pertaining to the Proposed Development. However, because the \[GOVERNMENTAL BODY\] consists of three Members, \[INDIVIDUAL\] would be permitted to second a motion on a (CONFIDENTIAL NOT TO BE DISSEMINATED TO THE PUBLIC) Confidential Advice, 21-561 November 19, 2021 Page 5 matter pertaining to the Proposed Development where a second to the motion is not forthcoming because the two non-conflicted \[GOVERNMENTAL BODY MEMBERS\] have opposing views. See, Garner, supra. Allowing \[INDIVIDUAL\] to second the motion under such circumstances would put the matter in a posture for a vote. Section 1103(j) of the Ethics Act would permit \[INDIVIDUAL\] to vote to break a tie if the two non-conflicted \[GOVERNMENTAL BODY MEMBERS\] would cast opposing votes on a matter pertaining to the Proposed Development, provided that \[INDIVIDUAL\] would initially: (1) abstain from the vote; and (2) fully satisfy the disclosure requirements of Section 1103(j). However, in voting to break a tie vote, \[INDIVIDUAL\] could not otherwise use the authority of office, such as by advocating his view, in the matter. 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, this advisory does not address any applicability of the Second Class Township Code. 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 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. Respectfully, Brian D. Jacisin Chief Counsel (CONFIDENTIAL NOT TO BE DISSEMINATED TO THE PUBLIC)