Loading...
HomeMy WebLinkAbout03-527 TuroRon Turo, Esquire Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 Re: Conflict; Public Official /Employee; Township Supervisor; Immediate Family; Father; Lawsuit; Board Action to Vacate Road; Adjoining Land Owners; Three - Member Board. Dear Mr. Turo: ADVICE OF COUNSEL March 21, 2003 03 -527 This responds to your letter of February 14, 2003, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Ha.GS. § 1101 et seq., presents any prohibition or restrictions upon a township supervisor with regard to voting on an ordinance to vacate a township road when: 1) both the supervisor and his father own land adjoining the road; (2) passage of the ordinance could result in providing strips of land currently contained within the township road's right -of -way to adjoining landowners including the supervisor and his father; and (3) one of the supervisors on the three - member board would be absent. Facts: As Solicitor for Latimore Township ( "Township "), Adams County, eennsylvania, you seek an advisory from the State Ethics Commission on behalf of Daniel Worley ("Worley"), a Township Supervisor. You have submitted facts which may be fairly summarized as follows. In January 2002 the Board of Supervisors voted to temporarily close a portion of "Plank Road" in the Township. Thereafter, a lawsuit was commenced against the Township by residents who were affected by the closing of the road. You state that the lawsuit is currently pending in the Court of Common Pleas of Adams County. In addition, you state that some affected residents have filed an action in mandamus against the Board of Supervisors asking the Court to require the Board to take action to reopen and maintain the road now that the Township has conclusively determined that Plank Road is a Township road. Turo/Worley, 03 -527 March 21, 2003 Page 2 The Board of Supervisors is currently considering an ordinance to vacate the road, which under operation of law, could provide strips of land currently contained within the right -of -way of Plank Road to adjoining landowners. You have raised two concerns relative to the proposed ordinance. First, Worley and his father both own land adjoining Plank Road, and therefore, questions have arisen as to whether Worley may vote in the matter. Second, one of the Supervisors of the three - member Board has not been in attendance for almost one year. Therefore, you state that any vote on the ordinance to vacate the road would be accomplished by the two remaining Supervisors, one of who would be Worley. Based upon the foregoing facts, you ask whether, pursuant to the Ethics Act, Worley may vote to vacate the 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. As a Township Supervisor, Worley 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. Turo/Worley, 03 -527 March 21, 2003 Page 3 "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. 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 applying the above provisions of the Ethics Act to the instant matter, pursuant to Section 1103(a) of the Ethics Act, Worley would generally have a conflict of interest in matters that would financially impact himself; his father or other immediate family member; or a business with which Worley or a member of his immediate family is associated. In each instance of a conflict, Section 1103(j) would require Worley to abstain fully 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. Turo/Worley, 03 -527 March 21, 2003 Page 4 It must be noted that 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. There is no indication in the submitted facts as to any potential applicability of this exclusion. As for the class /subclass exclusion, in order for the 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 ublic 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" On no way differently) than 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 01 -007. The Commission has held that 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. A proper analysis of the applicability of the class /subclass exclusion in any given instance requires a careful examination of the circumstances, on a case -by -case basis. Id. The second criterion 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 proposed action upon the property values of the members of the class /subclass, an advisory must necessarily be limited to providing general guidance. You are advised that under the submitted facts, which indicate that the proposed Township ordinance to vacate Plank Road would have a financial impact upon Worley and his father, Worley would have a conflict of interest as to the ordinance to vacate Plank Road unless the class/subclass exclusion would be applicable. Due to a factual insufficiency, this Advice cannot include a conclusive determination as to whether the class /subclass exclusion would apply. Turning to your second concern, regarding the absence of one of the other 2 supervisors, you are advised as follows. Assuming Worley would have a conflict, he would still be permitted to participate under certain limited circumstances. In Garner, Opinion 93 -004, the Commission considered the issue of whether, under Section 30) of the Ethics Law, a supervisor on a three member board would be permitted to second a motion even if he had a conflict where the two remaining supervisors would have opposing views or where one of the remaining two members would be absent from the meeting. Citing Juliante, Order 809, the Commission first noted that seconding a motion is a use of authority of office. Hence an individual with a conflict would not be permitted to participate, make a motion, second a motion, or vote. See, Garner, supra. However, the Commission also stated: Turo/Worley, 03 -527 March 21, 2003 Page 5 [T]he General Assembly in enacting Section 3(j) would not have allowed a public official /employee on a three member board who has a conflict to be able to vote unless a second to the motion could be made so that the matter would be in the posture for a vote. Thus, we believe that since there is a need for a second to a motion in order to make Section 3(j) of the Ethics Law operative, the General Assembly intended as to three members [sic] boards for the public official with a conflict to be allowed to second so that if the other supervisors became deadlocked, the public official could then vote provided the disclosure requirements are satisfied. Garner, at 6. In light of the foregoing, the Commission concluded that Section 3(j) of the Ethics Law does allow an individual to second a motion where the two remaining supervisors have opposing views or where one of the other two supervisors is absent. The Commission emphasized that its ruling was expressly limited in its application to three member boards and to the question of seconding a motion. Applying Garner to the instant matter, even if Worley would have a conflict of interest as to the proposed ordinance to vacate Plank Road, Worley would be permitted to second a motion relative to the ordinance if: (1) the two remaining Supervisors would have opposing views; or (2) one of the other two Supervisors would be absent from the meeting. Allowing Worley to second the motion in either of the above scenarios would put the matter in a posture for a vote. Then, only in a situation where the two other Supervisors would be present and deadlocked would Worley be permitted to vote to break the tie provided that the disclosure requirements of Sections 1103() would be satisfied. 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. Conclusion: As a Supervisor for Latimore Township ( "Township "), Daniel Worley (Worley ") 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. Under the submitted facts, which indicate that the proposed Township ordinance to vacate Plank Road would have a financial impact upon Worley and his father, Worley would have a conflict of interest as to the ordinance to vacate Plank Road unless the class/subclass exclusion would be applicable. Due to a factual insufficiency, this Advice cannot include a conclusive determination as to whether the class /subclass exclusion would apply. In each instance of a conflict, Section 1103(j) would require Worley to abstain fully 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. Even if Worley would have a conflict of interest, Section 1103(j) of the Ethics Act would allow Worley to second a motion relative to the ordinance to vacate Plank Road if the two remaining Supervisors would have opposing views or if one of the other two Supervisors would be absent from the meeting. Allowing Worley to second the motion in either of the above scenarios would put the matter in a posture for a vote. Then, only in a situation where the two other Supervisors would be present and deadlocked would Worley be permitted to vote to break the tie provided that the disclosure requirements of Sections 1103(1) would be satisfied. Turo/Worley, 03 -527 March 21, 2003 Page 6 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