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HomeMy WebLinkAbout22-528 MoorePHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL August 1, 2022 To the Requester: Donald S. Moore Dear Donald S. Moore, FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov 22-528 This responds to your correspondence dated June 27, 2022, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the general issues presented below: Issues: As a Member of the Township Board of Supervisors for Plainfield Township ("Township"), would you have a conflict of interest under Section 1103(a) of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1103(a), with regard to voting on a rezoning request made by Waste Management, Inc. ("Waste Management"), where you previously published a guest columnist letter in a local newspaper discussing Waste Management's public meeting that was held to address the rezoning plans. Brief Answer: You would not have a conflict of interest and would not violate Section 1103(a) of the Ethics Act by voting on a rezoning request made by Waste Management, Inc. ("Waste Management"), where you previously published a guest columnist letter in a local newspaper discussing Waste Management's public meeting that was held to address the rezoning plans unless: (1) you would be consciously aware of a private pecuniary (financial) benefit for yourself, a member of your immediate family or a business with which you or a member of your immediate family is associated (2) your action(s) would constitute one or more specific steps to attain that benefit; and (3) neither of the statutory exclusions to the definition of "conflict" or "conflict of interest" as set forth in the Ethics Act, 65 Pa.C.S. § 1102, would be applicable.' ' Action that has a de minimis (insignificant) economic impact or that 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, does not constitute a conflict of interest. Moore, 22-528 August 1, 2022 Page 2 Facts: You request an advisory from the Commission based upon submitted facts, the material portion of which may be fairly summarized as follows: You are a Member of the Township Board of Supervisors for Plainfield Township, located in Northampton County, Pennsylvania. In a private capacity, you wrote a guest columnist letter addressing Waste Management's public meeting that was published in Easton Express Times (Lehigh Valley Live). The purpose of the public meeting was to discuss the rezoning of farm and forest township land to expand the Grand Central Sanitary Landfill, which is operated by Waste Management. Waste Management had presented an identical request to the Township Board of Supervisors in February 2020, which was rejected in July 2020. Your primary intent in submitting the guest columnist letter was to alert citizens that the plan to be discussed at the June 2022 meeting was identical to that which was rejected two years ago. You mention that you are retired from teaching and engineering, with no fiduciary, professional or employment relationship to any corporate activity with a presence in Plainfield Township. You also mention that no immediate family member would be affected by the proposal. Based upon the above submitted facts, you pose the following questions: Whether the Ethics Act would prohibit you from voting on a rezoning request by Waste Management to expand the Grand Central Sanitary Landfill. 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 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 material facts. Sections 1103(a) and 11030) of the Ethics Act provide: § 1103. Restricted activities (a) Conflict of interest. -- No public official or public employee shall engage in conduct that constitutes a conflict of interest. Moore, 22-528 August 1, 2022 Page 3 0) 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), 11030). 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. Moore, 22-528 August 1, 2022 Page 4 "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. "Immediate family." A parent, spouse, child, brother or sister. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict" or "conflict of interest" (i.e., the de minimis exclusion and the class/subclass exclusion), 65 Pa.C.S. § 1102, a public official/public employee is prohibited from using the authority of public office or confidential information received by holding such a public position for the private pecuniary (financial) 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 unless one of the statutory exceptions of Section 11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting conflict. Per the Pennsylvania Supreme Court's decision in 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: ... must act in 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 public official/public employee "must be consciously aware of a private pecuniary benefit for himself, his family, or his business, and then must take action in the form of one or more specific steps to attain that benefit." Id., 610 Pa. at 528, 22 A.3d at 231. Moore, 22-528 August 1, 2022 Page 5 Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As a Member of the Township Board of Supervisors for Plainfield Township, you are a public official subject to the provisions of the Ethics Act. You do not claim to have any fiduciary, professional or employment relationship to any corporate activity with a presence in Plainfield Township or any immediate family members that would be affected by the proposal. Further, the letter published in the Easton Express Times was written in your capacity as a guest columnist. Pursuant to Section 1103(a) of the Ethics Act, you generally would have a conflict of interest in matters before the Township that would financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. In response to your question, you are advised that you would not have a conflict of interest and would not violate Section 1103(a) of the Ethics Act by voting on a rezoning request made by Waste Management, Inc. ("Waste Management"), where you previously published a guest columnist letter in a local newspaper discussing Waste Management's public meeting that was held to address the rezoning plans unless: (1) you would be consciously aware of a private pecuniary (financial) benefit for yourself, a member of your immediate family or a business with which you or a member of your immediate family is associated (2) your action(s) would constitute one or more specific steps to attain that benefit; and (3) neither of the statutory exclusions to the definition of "conflict" or "conflict of interest" as set forth in the Ethics Act, 65 Pa.C.S. § 1102, would be applicable In each instance of a conflict of interest, you would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting conflict. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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 Moore, 22-528 August 1, 2022 Page 6 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, Bridget K. Guilfoyle Chief Counsel