HomeMy WebLinkAbout02-622 JacquelinGeorge B. Ditter, Esquire
Jenkins, Siergiej & Smith
140 East Butler Avenue
P.O. Box 387
Ambler, PA 19002 -0387
Re: Conflict; Public Official /Employee; Township Commissioner; Member,
Revitalization Oversight Committee; Advisory Board; Realtor; Property Owner;
De Minimis Exclusion; Class /Subclass Exclusion.
Dear Mr. Ditter:
ADVICE OF COUNSEL
December 3, 2002
02 -622
This responds to your letters of October 15, 2002, and October 28, 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., presents any prohibition or restrictions upon a township
commissioner with regard to serving as a member of a township revitalization oversight
committee or voting as a township commissioner on any eventual revitalization plan,
when: (1) the township commissioner owns real estate, including commercial
properties, located within the township but not within the revitalization district; and (2)
the township commissioner is a realtor and may have professional involvement with
properties located within or near the revitalization district.
Facts: As a member of the law firm that serves as Solicitor to the Township of
ppper Moreland ( "Township "), you seek an advisory from the State Ethics Commission
on behalf of Township Commissioner Henry Jacquelin ( "Jacquelin "). You have
submitted facts which may be fairly summarized as follows.
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
Ditter /Jacquelin, 02 -622
December 3, 2002
Page 2
proceeded to the completion of the 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 to the 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. You pose 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.
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. To the extent you have inquired as to conduct
Ditter /Jacquelin, 02 -622
December 3, 2002
Page 3
which has already occurred, such past conduct may not be addressed in the context of
an advisory opinion. However, to the extent you have inquired as to future conduct,
your inquiry may and shall be addressed.
Substantively, the first matter to be addressed is Jacquelin's status as a "public
official" or "public employee" subject to the Ethics Act. Such status is important
because the conflict of interest provisions of the Ethics Act about which you have
inquired only apply to restrict the conduct of public officials and public employees. 65
Pa.C.S. §§ 1103(a), 0).
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 that are used to determine whether
the advisory board exception italicized above applies:
(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.
Ditter /Jacquelin, 02 -622
December 3, 2002
Page 4
(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.
(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.
The Ethics Act defines the term "public employee" as follows:
§ 1102. Definitions
"Public employee." Any individual employed by the
Commonwealth or a political subdivision who is responsible
for taking or recommending official action of a nonministerial
nature with regard to:
(1) contracting or procurement;
Ditter /Jacquelin, 02 -622
December 3, 2002
Page 5
(2) administering or monitoring grants or subsidies;
(3) planning or zoning;
(4) inspecting, licensing, regulating or auditing any
person; or
(5) any other activity where the official action has an
economic impact of greater than a de minimis nature
on the interests of any person.
The term shall not include individuals who are employed by
this Commonwealth or any political subdivision thereof in
teaching as distinguished from administrative duties.
65 Pa.C.S. § 1102.
The Regulations of the State Ethics Commission similarly define the term "public
employee" and set forth additional criteria used to determine whether an individual is
within the definition.
In applying the above to the instant matter, it is clear that in his capacity as a
Township Commissioner, Jacqueline is a public official subject to the Ethics Act. See,
e.q., Gallen, Order 1198.
However, in his capacity as a Member of the Committee, Jacquelin is neither a
public official nor a public employee as those terms are defined by the Ethics Act. This
conclusion is based upon a straightforward application of the statutory and regulatory
definitions and criteria quoted above. The definition of the term "public employee'
requires, inter alia, that the individual be employed by the Commonwealth or a political
subdivision. 65 Pa.C.S. § 1102. In his capacity as a Member of the Committee,
Jacquelin is not an employee of the Township. Additionally, Jacquelin is not a "public
official" in his capacity as a Member of the Committee because he falls within the
statutory exception for Members of purely 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 a political subdivision. Per the submitted facts, the
Committee has no authority to expend public funds or to otherwise bind the Township.
Rather, the authority of the Committee is limited to recommending a planner to the
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, all of which recommendations are not binding on the
Board. Therefore, the necessary conclusion is that in his capacity as a Member of the
Committee, Jacquelin is neither a public official nor a public employee as defined by the
Ethics Act.
Sections 1103(a) and 1103(j) of the Ethics Act pertaining to conflicts of interest
specifically apply to public officials and public employees:
§ 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
Ditter /Jacquelin, 02 -622
December 3, 2002
Page 6
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.
"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, stock company, receivership, trust or any legal entity
organized for profit.
Ditter /Jacquelin, 02 -622
December 3, 2002
Page 7
"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).
Subject to certain statutory exclusions in the definition of "conflict" or "conflict of
interest," a public official /public employee is prohibited under Section 1103(a) of the
Ethics Act 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.
In each instance of a conflict, Section 1103(j) of the Ethics Act requires the public
official /public employee to abstain and to publicly disclose 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. In the event that the required abstention results in
the inability of the governmental body to take action because a majority is unattainable
due to the abstention(s) from conflict under the Ethics Act, then voting is permissible
provided the disclosure requirements noted above are followed. See, Pavlovic, Opinion
02 -005; Mlakar, Advice 91- 523 -S.
In applying the above provisions of the Ethics Act to the instant matter, you have
posed two specific questions concerning Jacquelin's conduct as a Township
Commissioner and as a Member of the Committee:
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.
In response to your first specific question, as noted above, Sections 1103(a) and
1103(j) of the Ethics Act do not apply to restrict Jacquelin in his capacity as a Member
of the Committee, because in that capacity, Jacquelin is neither a public official nor a
public employee as defined by the Ethics Act.
Your second question regarding Jacquelin's conduct as a Township
Commissioner shall now be addressed.
Pursuant to Section 1103(a) of the Ethics Act, Jacquelin would generally have a
conflict of interest in matters 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. See, Miller, Opinion 89-
024; Kannebecker, Opinion 92 -010. To the extent Jacquelin is a director, officer, owner,
or employee of a real estate agency /firm or has a financial interest in such a real estate
agency /firm, it is a business with which Jacquelin is associated.
However, the statutory definition of "conflict" or "conflict of interest" includes two
exclusions, hereinafter referred to as the "de minimis" exclusion and the "class /subclass
exclusion."
The de minimis exclusion precludes a finding of conflict of interest as to an action
having a de minimis (insignificant) economic impact. Thus, when a matter that would
otherwise constitute a conflict of interest under the Ethics Act would have an
Ditter /Jacquelin, 02 -622
December 3, 2002
Page 8
insignificant economic impact upon Jacquelin, a member of his immediate family, a
business with which he or a member of his immediate family is associated, or the
client(s) of such a business, a conflict would not exist and Sections 1103(a) and 1103(j)
of the Ethics Act would not restrict Jacquelin's participation in such matter. See,
Schweinsburq, Order 900.
In order for the class /subclass exclusion to apply, two criteria must be met: (1)
the affected public official /public employee, immediate family member, or business with
which the public official /public employee or immediate family member is associated
must be a member of a class consisting of the general public or a true subclass
consisting of more than one member; and (2) the public official /public employee,
immediate family member, or business with which the public official /public employee or
immediate family member is associated must be affected "to the same degree" as the
other members of the class /subclass. 65 Pa.C.S. § 1102; see, Graham, Opinion 95 -002
(citing Van Rensler, Opinion 90 -017); Rubenstein, Opinion The first criterion of
the exclusion is satisfied where the members of the proposed subclass are similarly
situated as the result of relevant shared characteristics. The second criterion of the
exclusion is satisfied where the individual /business in question and the other members
of the class /subclass are reasonably affected to the same degree by the proposed
action. Kablack, Opinion 02 -003.
The second criterion above may be difficult to establish in matters pertaining to
real estate. Sometimes a determination as to whether a public official would be affected
to the same degree as other property owners in a proffered class /subclass may only be
made through a comparison of real estate appraisals of the affected properties. See,
e.q., Laser, Opinion 93 -002 (Concluding that in the absence of appraisals, a
determination could not be made as to whether the value of a township supervisor's
property would be affected by a proposed development to the same degree as that of all
other property owners in the proffered class /subclass). When a factual insufficiency
exists as to the impact of a roposed action upon the property values of the members of
the class /subclass, an advisory must necessarily be limited to providing general
guidance.
Based upon the facts which have been submitted, this Advice has addressed the
applicability of Sections 1103(a) and 1103(j) of the Ethics Act only. It is expressly that there has been no use of authority of office for a private pecuniary benefit
as prohibited by Section 1103(a) of the Ethics Act. Further, you are advised that
Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer
to a public official /public employee 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. Specifically not addressed herein is the
applicability of the First Class Township Code.
Conclusion: As a Township Commissioner for Upper Moreland Township
( "Township "), 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.
In his capacity as a Township Commissioner, Jacquelin 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
Ditter /Jacquelin, 02 -622
December 3, 2002
Page 9
private client(s) of Jacqueline or a business with which he or a member of his immediate
family is associated. 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. In his capacity as a Member of the Township's
Revitalization Oversight Committee ( "Committee "), Jacquelin is neither a "public official"
nor a "public employee" as those terms are defined by the Ethics Act. Therefore,
Jacquelin's conduct as a Member of the Committee is not subject to the restrictions of
Sections 1103(a) and 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