Loading...
HomeMy WebLinkAbout03-547 AltlandMichael H. Altland 327 N. Pine Avenue — Apt. B14 Spring Grove, PA 17362 ADVICE OF COUNSEL May 6, 2003 03 -547 Re: Conflict; Public Official /Employee; Borough Council Member; Voting On Petition To Vacate Borough Street; Development; Business Relationship. Dear Mr. Altland: This responds to your faxed letter of April 16, 2003, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., presents any prohibition or restrictions upon a borough council member as to voting on a petition to close a portion of a borough street that would connect to a housing development proposed by an individual for whom the council member performs occasional maintenance jobs in an apartment complex where the individual is the landlord and the council member is his tenant. Facts: As a Member of the Council of Spring Grove Borough ( "Borough "), you seek an advisory from the State Ethics Commission based upon the following submitted facts. On May 5, 2003, Borough Council will vote on a petition filed by two Borough property owners to close a portion of Glenview Road that will connect to a housing development proposed by Charles Hartman ( "Hartman "). The proposed development is located in Jackson Township, York County, which abuts the municipal boundaries of the Borough. You live in an apartment complex in the Borough that is owned by Hartman and you do occasional maintenance jobs around the apartment complex for which you receive a deduction in your monthly rent. You state that you have no financial interest in the proposed development in Jackson Township. You further state that you do not intend to conduct any maintenance or other jobs at that location, which is approximately one half mile from your residence. Altland, 03 -547 May 6, 2003 Page 2 You have submitted a copy of a letter from the Borough Solicitor dated April 13, 2003, regarding the matter described above, which letter is incorporated herein by reference. Based upon the foregoing facts, you ask whether you would have a conflict of interest as to voting on the petition to close a portion of Glenview Road which would serve the proposed development of Hartman. 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 Member of the Council of Spring Grove Borough ( "Borough "), you are a public official as that term is defined in the Ethics Act, and hence you are subject to the provisions of that 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. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, Altland, 03 -547 May 6, 2003 Page 3 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. 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, Section 1103(j) requires the public official/ 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 Altland, 03 -547 May 6, 2003 Page 4 abstention(s) from conflict under the Ethics Act, then voting is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. In applying the above provisions of the Ethics Act to your inquiry, it is noted that Section 1103(a) of the Ethics Act pertaining to conflicts of interest does not prohibit public officials /public employees from having outside business activities or employment; however, the public official /public employee may not use the authority of his public position - -or confidential information obtained by being in that position- -for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. Examples of conduct that would be prohibited under Section 1103(a) would include: (1) the pursuit of a private business opportunity in the course of public action, Metrick, Order 1037; (2) the use of governmental facilities, such as governmental telephones, postage, staff, equipment, research materials, or other property, or the use of governmental personnel, to conduct private business activities, Freind, Order 800; Pancoe, supra; and (3) the participation in an official capacity as to matters involving the business with which the public official /public employee is associated in his private capacity, Gorman, Order 1041, or private client(s). Miller, Opinion 89 -024; Kannebecker, Opinion 92 -010. Given that you rent an apartment from Hartman, it is clear that you have an ongoing business relationship with Hartman. In addition, given that you perform maintenance services at that apartment complex and receive compensation for such services which is deducted from your rent, it appears that you also have a business relationshi p with Hartman as to that arrangement. Therefore, pursuant to Section 1103(a) of the Ethics Act, as a Borough Council Member, you would be prohibited from using the authority of your office or confidential information for the private pecuniary benefit of yourself, a member of your immediate family, a business with which you or a member of your immediate family is associated, or Hartman. Having established the above general principles, your specific inquiry shall now be addressed. The question of whether you would have a conflict of interest under Section 1103(a) of the Ethics Act as to voting on the petition to close a portion of Glenview Road which would serve the proposed development of Hartman depends upon whether there would be a private pecuniary benefit to Hartman. If there would be no private pecuniary benefit, there would be no conflict; if there would be a private pecuniary benefit, there would be a conflict. In the instant case, a private pecuniary benefit would exist, for example, if a vote by you to keep the road open (or a negative vote against closing the access) would result in an increase in the value of Hartman's housing development due to better access to that development. In that there is a factual insufficiency as to whether a use of authority of office by you would result in a private pecuniary benefit, a conclusive determination cannot be made as to whether a conflict of interest exists. In each instance of a conflict, you 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 Borough Code. Conclusion: As a Member of the Council of Spring Grove Borough ( "Borough "), you are a public official subject to the provisions of the Public Official and Employee Ethics Act "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Altland, 03 -547 May 6, 2003 Page 5 An ongoing business relationship exists between you and Charles Hartman ( "Hartman ") by virtue of the fact that you rent an apartment from Hartman. In addition, given that you perform maintenance services at that apartment complex and receive compensation for such services which is deducted from your rent, it appears that you also have a business relationship with Hartman as to that arrangement. Pursuant to Section 1103(a) of the Ethics Act, as a Borough Council Member, you would be prohibited from using the authority of your office or confidential information for the private pecuniary benefit of yourself, a member of your immediate family, a business with which you or a member of your immediate family is associated, or Hartman. The question of whether you would have a conflict of interest under Section 1103(a) of the Ethics Act as to voting on the petition to close a portion of Glenview Road which would serve the proposed development of Hartman depends upon whether there would be a private pecuniary benefit to Hartman. If there would be no private pecuniary benefit, there would be no conflict; if there would be a private pecuniary benefit, there would be a conflict. In the instant case, a private pecuniary benefit would exist, for example, if a vote by you to keep the road open (or a negative vote against closing the access) would result in an increase in the value of Hartman's housing development due to better access to that development. In that there is a factual insufficiency as to whether a use of authority of office by you would result in a private pecuniary benefit, a conclusive determination cannot be made as to whether a conflict of interest exists. In each instance of a conflict, you 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