HomeMy WebLinkAbout02-622-S JacqulinGeorge B. Ditter, Esquire
Jenkins, Siergiej & Smith
140 East Butler Avenue
P.O. Box 387
Ambler, PA 19002 -0387
Re: Public Official /Employee; Township Commissioner; Member, Revitalization
Oversight Committee; Realtor; Past Conduct; Real Estate Transaction Preceding
Adoption of Revitalization Plan or Redevelopment Area Plan; Supplemental
Advice.
Dear Mr. Ditter:
ADVICE OF COUNSEL
March 7, 2003
02 -622 -S
This responds to your letter of February 6, 2003, by which you requested
supplemental advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. § 1101 et seq., would present any prohibition or restrictions upon a township
commissioner with regard to participating in the adoption of a revitalization plan or
redevelopment area plan when he has engaged in past activity as a realtor with respect
to certain premises located within the revitalization /redevelopment areas.
Facts: On behalf of Upper Moreland Township ( "Township ") Commissioner Henry
Jacquelin ( "Jacquelin "), you have requested a supplemental advisory as to Ditter,
Advice of Counsel, 02 -622, which Advice is incorporated herein by reference.
Advice of Counsel 02 -622 was issued based upon the following facts:
In 1998, the Township Board of Commissioners ( "Board ") initiated
a process under the Municipalities Planning Code and the Urban
Redevelopment Act for the revitalization of a certain section of the
Township. Pursuant to this process, the Montgomery County Planning
Commission recommended that certain boundaries be established for the
creation of a revitalization area ( "Revitalization District "). At a public
meeting, the Board approved the boundaries recommended by the
Montgomery County Planning Commission. Subsequently, the Board
took various actions, but never proceeded to the completion of the
Ditter- Jacquelin 02 -622 -S
March 7, 2003
Page 2 of 8
revitalization project. Jacquelin participated in these meetings and in the
vote to approve the Revitalization District.
In January 2002 the Board voted to approve the formation of a
Revitalization Oversight Committee ("Committee"). The Committee has
been charged with recommending a planner tote Board, working with
the planner chosen by the Board to develop a plan for
revitalization /redevelopment, and making recommendations for action
concerning the adoption of such plan to the Board. The Committee has
no authority to bind the Township, and its recommendations are not
binding on the Board.
The Committee Members have been appointed by the Board
President. The Committee Members include two elected Commissioners
(one of whom is Jacquelin), twelve volunteers, the Township Manager,
and a representative of the Montgomery County Planning Commission.
All meetings of the Committee are placed upon the Township
schedule and are open to the public.
Jacquelin owns several parcels of real property located within the
Township. However, you state that since the beginning of the
revitalization discussions in 1998, neither Jacquelin nor his spouse has
purchased any properties located within the Revitalization District. You
further state that none of the properties owned by Jacquelin or his wife is
within the Revitalization District. You note that some of the volunteers
who serve on the Committee have businesses either in or close to the
Revitalization District.
In his private capacity, Jacquelin is a realtor. He has served as
the broker for properties located within the Revitalization District, for
which service he has received commission(s). However, as of your
inquiry, none of these properties has been part of any revitalization plan.
You state that Jacquelin has been the subject of a recurring claim
that it is a conflict of interest for any member of the Board or the
Committee to own real estate within the Township, especially near the
Revitalization District.
Ditter, Advice of Counsel 02 -622 at 1 -2.
The issue presented in Advice of Counsel 02 -622 was whether the Ethics Act
would present any prohibition or restrictions upon Jacquelin with regard to serving as a
member of the Township's Revitalization Oversight Committee or voting as a Township
Commissioner on any eventual revitalization plan, when: (1) Jacquelin owns real
estate, including commercial properties, located within the Township but not within the
Revitalization District; and (2) Jacquelin is a realtor and may have professional
involvement with properties located within or near the Revitalization District. You posed
the following specific inquiries:
1. Whether Jacquelin would have a conflict of interest regarding the
Revitalization Oversight Committee; and
2. Whether Jacquelin's ownership of commercial properties within the
Township would create a conflict of interest that would prevent him
from voting on any eventual revitalization plan.
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March 7, 2003
Page 3 of 8
Advice of Counsel 02 -622 determined that in his capacity as a Member of the
Township's Revitalization Oversight Committee, Jacquelin is neither a "public official"
nor a "public employee" as those terms are defined by the Ethics Act, and therefore,
Jacquelin's conduct as a Member of the Oversight Committee is not subject to the
restrictions of Sections 1103(a) and 1103(j) of the Ethics Act. Ditter, Advice of Counsel
02 -622 at 5, 7. The Advice further determined that in his capacity as a Township
Commissioner, Jacqueline would be considered a public official subject to the Ethics Act
and would generally have a conflict of interest in matters before the Township Board of
Commissioners ( "Board ") that would financially impact Jacquelin; Jacquelin's spouse or
other immediate family member; a business with which Jacquelin or a member of his
immediate family is associated; or private client(s) of Jacqueline or a business with
which he or a member of his immediate family is associated. Id. The Advice noted that
a conflict of interest would not exist when the "de minimis" exclusion or the
"class /subclass exclusion" to the definition of "conflict" or "conflict of interest" would be
applicable. Id. at 7 -9.
In your request for a supplemental advisory, you have submitted additional facts,
the material portion of which may be fairly summarized as follows.
The area of the Township that is in question, known as "Willow Grove," has been
involved in procedures under both the Urban Redevelopment Law and a "Community
Revitalization Program" established by Montgomery County.
In July of 2000, following a public hearing, the Board voted to designate a portion
of Willow Grove as a "Redevelopment Area." The Board also designated the borders of
the Redevelopment Area.
In August of 2000 the Montgomery County Planning Commission voted to
designate the same area a Redevelopment Area under the Urban Redevelopment Law.
Thereafter, some planning went forward, but no actual "Redevelopment Area Plan" as
defined by the Urban Redevelopment Law was ever adopted.
The Oversight Committee established by the Board in January of 2002 was to
work with the planner to develop a plan that would be a "Redevelopment Area Plan" as
defined by the Urban Redevelopment Law and also a plan under the requirements of
the Community Revitalization Program established by Montgomery County. Until
January 27, 2003, it was anticipated that one plan would be developed, but now the
plan is being separated into two documents.
Within the boundaries of the Redevelopment Area and Revitalization District is a
certain property located at 213 -217 Easton Road. In August of 2002 Jacquelin, in his
capacity as a realtor, was approached by the owners of this property. The owners were
aware of the revitalization process and had attended some of the meetings of the
Oversight Committee. The owners told Jacquelin that they were interested in selling the
property and that Mr. Gerald DiMarzio "DiMarzio "), a Member of the Oversight
Committee and managing partner of the illow Inn located at 219 Easton Road, was
interested in purchasing the property, but that they had been unable to agree on a
purchase price.
Jacquelin agreed to attempt to negotiate an agreement between the parties or
otherwise market the property. Ultimately, an agreement was reached between the
sellers and DiMarzio. The sale was closed on November 29, 2002, without any
contingencies related to zoning or any other matter involving Township approvals.
Jacquelin received a real estate commission in connection with the sale.
Subsequently, on January 27, 2003, the consultant retained to prepare the
aforesaid plans made a presentation to a committee of the Board with respect to the
plans. On February 3, 2003, the Board voted to forward the draft plan(s) to the County's
Differ- Jacquelin 02 -622 -S
March 7, 2003
Page 4 of 8
Revitalization Board for review and comment. It was anticipated that the County's
Revitalization Board would act upon the draft plan(s) on or about February 25, 2003.
Following review and comments by the County's Revitalization Board, the
Township will hold a public hearing and will adopt a "Final Revitalization Plan." It is
anticipated that such public hearing and final adoption shall occur in March.
The premises at 213 -217 Easton Road are included in the draft Revitalization
Plan and the draft Redevelopment Area Plan as a part of an area entitled "Town Center
Gateway Block." This block is shown as a proposed commercial use area. You state
that such use would also be permitted under the existing zoning of the area. The plans
show two conceptual retail use buildings, one on each side of Easton Road, on the
"Town Center Gateway Block" including 213 -217 Easton Road.
You state that under the Urban Redevelopment Law, the Redevelopment Area
Plan will have to be adopted by the Township, the Montgomery County Planning
Commission and the Redevelopment Authority of Montgomery County.
Jacquelin has stated his intention to abstain from any vote in the future with
respect to the approval by the Township of any land development or improvements to
the premises at 213 -217 and 219 Easton Road. You pose the following questions:
1. Would Jacquelin have a conflict of interest in participating in the
adoption of the Revitalization Plan following the review and
comment and public hearing procedure set forth above based upon
his activity as a realtor with respect to 213 -217 Easton Road?
2. Would Jacquelin have a conflict of interest in participating in the
adoption of a Redevelopment Area Plan in the future based upon
his activity as a realtor with respect to 213 -217 Easton Road?
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
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.
It is further initially noted that, pursuant to the same aforesaid Sections of the
Ethics Act, an opinion /advice may be given only as to prospective (future) conduct. If
the activity in question has already occurred, the Commission may not issue an
opinion /advice but any person may then submit a signed and sworn complaint which will
be investigated by the Commission if there are allegations of Ethics Act violations by a
person who is subject to the Ethics Act. Confidential Opinion, 01 -001. To the extent
you have inquired as to conduct which has already occurred, such past conduct may
not be addressed in the context of an advisory opinion. However, to the extent you
have posed a narrow inquiry as to future conduct, your inquiry may, and shall be
addressed.
In his capacity as a Township Commissioner, Jacquelin is a "public official"
subject to the provisions of the Ethics Act.
Sections 1103(a) and 1103(j) of the Ethics Act pertaining to conflicts of interest
provide as follows:
Ditter - Jacquelin 02 -622 -S
March 7, 2003
Page 5 of 8
§ 1103. Restricted activities
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
(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(a), (j).
The following terms pertaining to conflicts of interest 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.
Ditter - Jacquelin 02 -622 -S
March 7, 2003
Page 6 of 8
"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.
"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.
65 Pa.C.S. § 1102 (Emphasis added).
Sections 1103(b) and 1103(c) of the Ethics Act, pertaining to improper influence,
provide as follows:
§ 1103. Restricted activities
(b) Seeking improper influence. —No person shall
offer or give to a public official, public employee or nominee
or candidate for public office or a member of his immediate
family or a business with which he is associated, anything of
monetary value, including a gift, loan, political contribution,
reward or promise of future employment based on the
offeror's or donor's understanding that the vote, official
action or judgment of the public official or public employee or
nominee or candidate for public office would be influenced
thereby.
(c) Accepting improper influence. -No public
official, public employee or nominee or candidate for public
office shall solicit or accept anything of monetary value,
including a gift, loan, political contribution, reward or promise
of future employment, based on any understanding of that
public official, public employee or nominee that the vote,
official action or judgment of the public official or public
employee or nominee or candidate for public office would be
influenced thereby.
65 Pa.C.S. §§ 1103(b), (c).
The term "person" is defined in the Ethics Act as follows:
§ 1102. Definitions
"Person." A business, governmental body,
individual, corporation, union, association, firm, partnership,
committee, club or other organization or group of persons.
65 Pa.C.S. § 1102.
In applying the above provisions of the Ethics Act to your request for a
supplemental advisory, it is clear that the answer to your inquiry hinges in large part
upon past conduct, which the Commission has consistently held cannot be reviewed in
an advisory. See, e.q., Confidential Opinion, 01 -001, supra. See also,
Differ- Jacquelin 02 -622 -S
March 7, 2003
Page 7 of 8
Hofrichter /Hessler, Opinion 98 -003, in which the Commission dismissed an appeal from
an Advice of Counsel on the basis that the matter involved past conduct:
Since Hessler has already taken action, this case is now in a
procedural posture where we are asked to decide, in essence, whether
Hessler violated the Ethics Law as to his past conduct. Thus, we would
have to make a determination as to whether a violation occurred based
upon submitted facts rather than through the statutorily - prescribed
process of an investigation. For obvious reasons, we cannot and will not
take such a course of action. We note that extensive documentation has
been supplied with Hessler's letter of April 7, 1998. Unfortunately, the
documents for the most part consist of letters written after the fact, drafts,
and documents concerning the mall expansion in general. We do not find
such documents relevant to the conflict issue before us. In any event,
such a submission would not equate to what would be produced if an
investigation were undertaken in this or any other case.
Id., at 5 -6.
In the instant matter, given the extent to which past conduct is involved, the
necessary response to your inquiry is as follows. Conditioned upon the assumptions
that:
(1) Jacquelin's past conduct did not violate the Ethics Act;
(2) there is no "nexus" or "linkage" between Jacquelin's past conduct, the real
estate transaction in 2002 involving the premises at 213 -217 Easton
Road, and Jacquelin's prospective conduct; and
there has not been and there would not be any "improper influence" as
prohibited by Sections 1103(b)/1103(c) of the Ethics Act,
you are advised that Jacquelin's past activity in 2002 as a realtor with respect to 213-
217 Easton Road would not result in Jacquelin being prohibited under the Ethics Act
from participating in the adoption of the Revitalization Plan or Redevelopment Area Plan
including the said premises.
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 First Class Township Code.
Conclusion: As a Township Commissioner for Upper Moreland Township
(" I ownship "), Henry Jacquelin ( "Jacquelin ") 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.
Conditioned upon the assumptions that: (1) Jacquelin's past conduct did not violate
the Ethics Act; (2) there is no "nexus" or "linkage" between Jacquelin's past conduct, the
real estate transaction in 2002 involving the premises at 213 -217 Easton Road, and
Jacquelin's prospective conduct; and (3) there has not been and there would not be any
"improper influence" as prohibited by Sections 1103(b)/1103(c) of the Ethics Act, you
are advised that Jacquelin's past activity in 2002 as a realtor with respect to 213 -217
Easton Road would not result in Jacquelin being prohibited under the Ethics Act from
participating in the adoption of the Revitalization Plan or Redevelopment Area Plan
including the said premises.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
(3)
Ditter - Jacquelin 02 -622 -S
March 7, 2003
Page 8 of 8
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