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HomeMy WebLinkAbout03-527-S TuroRon Turo, Esquire Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 Dear Mr. Turo: ADVICE OF COUNSEL June 6, 2003 03 -527 -S Re: Conflict; Public Official /Employee; Second Class Township; Supervisor; Immediate Family; Father; Lawsuit; Board Action to Vacate Road; Land Strip; Reverting to Adjoining Land Owner; Three - Member Board; Supplemental Advice. This responds to your letter of May 5, 2003, by which you requested supplemental advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 1a. =S. § 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: both the supervisor and his father own land adjoining the road; passage of the ordinance could result in reverting strips of land currently contained within the township road's right -of -way to adjoining landowners including the supervisor and his father; and the land strip has been appraised at a negative value. Facts: On behalf of Latimore Township ( "Township ") Supervisor Daniel Worley orey'), you have requested a supplemental advisory as to Turo/Worley, Advice of ounsel, 03 -527, which Advice was issued on March 21, 2003, and is incorporated herein by reference. Advice 03 -527 was based on the following facts: "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. 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. Turo/Worley, 03 -527 -S June 6, 2003 Page 2 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." Turo/Worley, Advice of Counsel 03 -527 at 1 -2. Advice of Counsel 03 -527 determined that as a Supervisor for Latimore Township ( "Township "), Worley is a public official subject to the provisions of the Ethics Act. Because the proposed Township ordinance to vacate Plank Road would have a financial impact upon Worley and his father, the Advice concluded that 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, the Advice did not make a conclusive determination as to whether the class /subclass exclusion would apply. The Advice further concluded that 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 could Worley be permitted to vote to break the tie provided that the disclosure requirements of Sections 1103(j) would be satisfied. Although the facts of the original inquiry have not changed, you now reference the de minimis exclusion as to conflict and note that you requested Worley to obtain a real estate appraisal as to the strip of land that would revert to him or his father in the event the township road would be vacated. The strip of land is approximately 25 by 600 feet and lies in the100 year flood plane as well as crosses a stream. Loy L. King, a certified real estate appraiser, states in a written appraisal that the land has no practical use and no value. Based upon the appraisal which reflects "a negative value for the land strip," you request that the matter be again reviewed on the conflict issue. 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 such submitted facts, 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 Supervisor for Latimore Township, Worley is a public official as that term is defined in the Ethics Act, and he is subject to the provisions of that Act. Section 1103(a) of the Ethics Act provides: Turo/Worley, 03 -527 -S June 6, 2003 Page 3 § 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. "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. § 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 Turo/Worley, 03 -527 -S June 6, 2003 Page 4 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 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 the instant matter, pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is prohibited 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 applying Section 1103(a) of the Ethics Act to the specific inquiry that you posed, the question of conflict of interest in this case will turn upon whether Worley's participation, as to the ordinance vote to vacate a township road which could result in a strip of land reverting to Worley or his father, results in a pecuniary benefit to the Worley or his father who is a member of Worley's immediate family as that term is defined under the Ethics Act. The Commission has held that without any private pecuniary benefit, there can be no conflict under Section 1103(a) of the Ethics Act. See, Wagner, Order 1028. If the strip of land in question has no value, then action by Worley as to the strip of land vis -a- vis the action to vacate the road would not result in a private pecuniary benefit to him /his father and hence would not be a conflict under the Ethics Act. However, if Worley's participation in the ordinance to vacate the township road would result in a private pecuniary benefit to himself /his father consisting of the financial gain in a positive value of the adjoining strip of land, then such would be a conflict as to which Worley must abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act. You have supplied an appraisal from a certified real estate appraiser who has stated that the land strip has "a negative value." If the land strip does in fact has no value as has been factually represented, then Worley would not have a conflict as to participating in the ordinance to vacate the township road which could result in a land strip reverting to himself or his father in that there would be no private pecuniary benefit as to the land strip. In light of the above, issues of possible exclusions as to conflict concerning de minimis or the class /subclass exclusion discussed in the base Advice need not be discussed. Turo/Worley, 03 -527 -S June 6, 2003 Page 5 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 respective municipal code. Conclusion: As a Supervisor for Latimore Township, Daniel 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. On the question of conflict of interest, the participation by Worley on the ordinance to vacate a township road which could result in a strip of land reverting to him /his father turns upon whether a pecuniary benefit will inure to the Worley /his father as to the value of the land strip. If the strip of land has no value, then action by Worley as to the strip of land vis -a -vis the action to vacate the road would not result in a private pecuniary benefit and hence would not be a conflict under the Ethics Act. However, if Worley's participation in the ordinance to vacate the township road would result in a private pecuniary benefit to himself /his father consisting of the financial g ain as to a positive value of the land strip, then such would be a conflict as to which W orley must abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act. An appraisal from a certified real estate realtor gives the land strip "a negative value." If the land strip does in fact have no value as has been factually represented, then Worley would not have a conflict as to participating in the ordinance to vacate the township road which could result in the reversion of a land strip to himself/ his father in that there would be no private pecuniary benefit as to the land strip. 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