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HomeMy WebLinkAbout02-615 ConfidentialADVICE OF COUNSEL November 6, 2002 02 -615 Re: Conflict; Public Official /Employee; Township Supervisor; Immediate Family; Son; Business With Which Associated; Civil Engineering and Land Planning Firm; Business Client; Conditional Use Application. This responds to your letter of October 3, 2002, by which you requested confidential advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 1a. =S. § 1101 et seq., presents any prohibition or restrictions upon a township supervisor with regard to a conditional use application submitted by a client of his son's firm for a project for which the son's firm has engineered land development plans. Facts: You seek a confidential advisory from the State Ethics Commission on behalt of Supervisor A, a Township Supervisor for Township B ( "Township "). You have submitted facts which may be fairly summarized as follows. Supervisor A's son, Immediate Family Member C, is the President of a civil engineering and land planning firm, Firm D ("Firm"). The Firm was hired to engineer the land development plans for a project located in the Township. The Township Zoning Ordinance requires that a conditional use approval be obtained from the Board of Supervisors for the land development project. Immediate Family Member C, as principal engineer for the project, will present the plans at a hearing on the conditional use application. You state your assumptions that the Firm has been paid for its work on the land development plans, and that its receipt of such payment is not contingent upon ultimately receiving conditional use approval by the Township Board of Supervisors. You state your additional assumption that the Firm will not receive further pecuniary benefit from the conditional use approval of its plans. Based upon the above, you ask whether Supervisor A would have a conflict of interest under the Ethics Act with regard to voting on the conditional use application. 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 requestor Confidential Advice 02 -615 November 6, 2002 Page 2 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. Thus, you are initially advised that those seeking advisories from the State Ethics Commission are to submit all of the material facts relevant to the inquiry, not assumptions. Nevertheless, an advisory may be issued to you in this matter because the end result of the analysis is the same regardless of the submitted assumptions. As a Township Supervisor, Supervisor A is a public official subject to the provisions of the 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 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. "Immediate family." A parent, spouse, child, brother or sister. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. Confidential Advice 02 -615 November 6, 2002 Page 3 "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. "Financial interest." Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. 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 judgment 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 1103(j) of the Ethics Act provides as follows: § 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, Section 1103(j) requires the public official /employee to abstain from participation in his public capacity. The abstention requirement is not limited merely to voting, but extends to any use of authority of office. In Juliante, Order No. 809, the Commission recognized that the use of authority of office as defined in the Ethics Act includes, for example, discussing, conferring with others, and lobbying for a particular result. Confidential Advice 02 -615 November 6, 2002 Page 4 In each instance of a conflict of interest, the public official must also satisfy the disclosure requirements of Section 11030) set forth above by disclosing 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. A member of a three - member Board of Supervisors who has a conflict of interest under the Ethics Act may vote despite the conflict to break a tie vote of the other members as long as he first abstains and discloses the conflict as required by Section 1103(j) of the Ethics Act. Pavlovic, Opinion 02 -005. The only exception that enables a member of a five - member Board of Supervisors to vote despite a conflict of interest requires that the following conditions be met: (1) the board must be unable to take any action on the matter before it because the number of members required to abstain from voting under the provisions of the Ethics Act makes the majority or other legally required vote of approval unattainable; and (2) prior to voting, such members with conflicts under the Ethics Act must disclose their conflicts as required by Section 1103(j). When both conditions are met, such that the exception is applicable, the exception allows for voting only —it does not permit other forms of participation, such as discussing the matter that is the subject of the vote. Klutzaritz, Order 1078. See, Pavlovic, supra; Mlakar, Advice 91- 523 -S. In applying the above provisions of the Ethics Act to the instant matter, pursuant to Section 1103(a) of the Ethics Act, 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. The Firm is clearly a business with which Supervisor A's son, Immediate Family Member C, is associated in his capacity as the Firms President. The State Ethics Commission has held that a conflict of interest exists where a public official /public employee, in his official capacity, participates, reviews or passes upon a matter involving a business with which he is associated and /or private clients. Miller, Opinion No. 89 -024; Kannebecker, Opinion No. 92 -010. A reasonable and l itimate expectation that a business relationship will form may also support a finding of a conflict of interest. Amato, Opinion No. 89 -002; Garner, Opinion No. 93 -004; Snyder, Order No. 979 -2, affirmed Snyder v. SEC, 686 A.2d 843 (Pa. Commw. Ct. 1996), alloc. den., No. 0029 M.D. Allocatur Docket 1997 (Pa. December 22, 1997). Given that pursuant to Section 1103(a), a conflict of interest is established based upon the same statutorily - delineated relationships whether as to a public official /public employee or his immediate family member, you are advised that Supervisor A would have a conflict of interest as to the conditional use application submitted by a client of his son's Firm for a project for which the son's Firm has engineered land development plans. In each instance of a conflict of interest, Supervisor A would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. 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. Confidential Advice 02 -615 November 6, 2002 Page 5 Conclusion: As a Township Supervisor for Township B ( "Township "), Supervisor A 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. Firm D ( "Firm "), a civil engineering and land planning firm, is a business with which Supervisor As son, Immediate Family Member C, is associated in his capacity as the Firm's President. Supervisor A would have a conflict of interest as to a conditional use application submitted by a client of his son's Firm for a project for which the son's Firm has engineered land development plans. In each instance of a conflict of interest, Supervisor A would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. 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