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HomeMy WebLinkAbout21-562 Friedman 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 December 6, 2021 To the Requester: Mr. David Friedman 21-562 Dear Mr. Friedman: This responds to your correspondence dated November 10, 2021, by which you requested an advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the general issue presented below: Issue: Does the Public Official and Employee Ethics Act place any prohibitions or restrictions upon a Township Supervisor who is a plaintiff in a lawsuit against the Township in which he serves as a public official? Brief Answer: YES. As a plaintiff who has sued the Township, an individual would have a conflict of interest in his capacity as a Township Supervisor in matters involving that litigation. Pursuant to Section 1103(a) of the Ethics Act, a public official could not use the authority of his public office, or confidential information to which he has access, for a private pecuniary benefit related to that lawsuit. Facts: You request an advisory from the Commission based upon the following submitted facts. Currently, you serve as a Member of the Board of Supervisors for Upper Mount Bethel Township (Township). The Board consists of five Members. Prior to your election, a Developer purchased property in the Township that was zoned Industrial. You assert that the Developer was not content with the zoning ordinances pertaining to this zone, but otherwise did not want to go through the variance procedures to change the zoning ordinances. The Developer submitted a Text Friedman, 21-562 December 6, 2021 Page 2 1 Amendment to change the zoning ordinances in his favor. This Text Amendment was passed by the Board of Supervisors in a 4-1 vote. You, along with five others, sued the Board of Supervisors for passing/enacting this Text Amendment. You state that you and the five others believed the Text Amendment was detrimental to the Township and would set a precedent for other development in the Township. You, along with about a dozen other citizens, formed a coalition to raise awareness and funds for legal expenses in your lawsuit. This group is called the Concerned Citizens of Upper Mount Bethel Township (CCUMBT). Wanting to enact policy instead of reacting to it, you ran for the Board of Supervisors and were elected. Your campaign platform emphasized keeping the Township rural and fighting the Text Amendment. In submitting your request for an Advisory, you stress the following points: 1. You are a plaintiff in the lawsuit against the Board of Supervisors. 2. You have contributed monetarily to the legal fund to pay for the lawyer. 3. You are an active member of the CCUMBT. 4. You have no financial interest or sought any financial gain in perusing this lawsuit. You seek an Advisory on the following questions that could arise during your tenure as a Supervisor. 1. Do you have to withdraw your name from the lawsuit in order to vote on issues pertaining to the Text Amendment? 2. If your name remains on the lawsuit would you need to recuse yourself from any issues pertaining to the Text Amendment? 3. Will you need to disassociate from the CCUMBT? Discussion: 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 1 A \[Text Amendment\] is an ordinance amending the text of a zoning ordinance without any facial effect on the zoning map. Text amendments can add or remove permitted uses within a zoning district or change the dimensional requirements applicable to buildings and other structures. Rezonings and Text Amendments in Pennsylvania: Procedural and Substantive Considerations, David J. Tshudy, https://www.troutman.com/insights/rezonings-and- text-amendments-in-pennsylvania-procedural-and-substantive-considerations.html Friedman, 21-562 December 6, 2021 Page 3 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. As a Township Supervisor for Upper Mount Bethel Township, you are a public official as that term is defined in the Public Official and Employee Ethics Act (Ethics Act). Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities (a) Conflict of interest. -- No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. §§ 1103(a). 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. In addition, Sections 1103(b) and 1103(c) of the Ethics Act 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. Friedman, 21-562 December 6, 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, any member of his immediate family, or a business with which he or a member of his 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. Because you serve on a five- member board, the voting conflict provisions of Section 1103(j) are not applicable. Kistler v. State Ethics Commission, 610 Pa. 516, 22 A.3d 223 (2011), in order to violate Section 1103(a) of the Ethics Act, a public official/public employee: n such a way as to put his \[office/public position\] to the purpose of obtaining for himself a private pecuniary benefit. Such directed action implies awareness on the part of the \[public official/public employee\] of the potential pecuniary benefit as well as the motivation to obtain that benefit for himself. Kistler, supra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics Act, a himself, his family, or his business, and then must take action in the form of one or more specific Id., 610 Pa. at 528, 22 A.3d at 231. In applying the above provisions of the Ethics Act to the circumstances which you have submitted, the fact that you are involved as a plaintiff in litigation against the Township does not preclude you from holding office as a Township Supervisor. However, pursuant to Section 1103(a) above, you cannot use the authority of your public office as a Township Supervisor, or confidential information you would have access to by being in that position, for a prohibited private pecuniary benefit. For example, a conflict of interest would exist should you, in your public position, engage in any Township deliberation, decision, or any other action involving the lawsuit such as by taking action to reduce or eliminate personal liability for counsel fees. See Lewis, Advice of Counsel: 98-503. As to your specific inquiries, so long as you remain associated with CCUMBT and/or the lawsuit, you will have a conflict as to any use of office concerning the Text Amendment and a pecuniary gain to yourself, a member of your immediate family, and/or a business (including a non-profit business/association) with which you or a member of your immediate family are associated. You will need to recuse yourself from any action regarding the Text Amendment so long as you (or an immediate family member) remain associated with the lawsuit and/or CCUMBT. Friedman, 21-562 December 6, 2021 Page 5 To the extent such use of office would not result in, or advance the prospects of a private pecuniary benefit within the context of Section 1103(a) no conflict would exist. In each instance of a conflict of interest, you would be required to abstain, recuse, and remove yourself from any Township action, including executive session discussions and deliberations. 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 Municipality Authorities Act. Conclusion: As a Member of the Board of Supervisors for Upper Mount Bethel Township, you are a public official as that term is defined by the Pennsylvania Public Official and Employee Ethics Act (65 Pa.C.S.§1101 et seq.) As a Township Supervisor you are prohibited from utilizing the authority of your public office, or confidential information to which you have access, for a private pecuniary benefit related to that lawsuit. 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