HomeMy WebLinkAbout03-559 SkypalaEdward A. Skypala, Esquire
224 King Street
Pottstown, PA 19464 -5597
ADVICE OF COUNSEL
June 17, 2003
03 -559
Re: Conflict; Public Official /Employee; Township Supervisor; Chairman; Business
With Which Associated; Client /Customer; Reasonable and Legitimate
Expectation of Business Relationship.
Dear Mr. Skypala:
This responds to your letter of May 13, 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 the Chairman of
the Skippack Township Board of Supervisors with regard to a developer's request for a
change of zoning classification, when the developer is currently a customer /client of the
Chairman's landscaping business and may hire the Chairman's business again in the
future.
Facts: As Solicitor for Skippack Township ( "Township ") in Montgomery County,
you request an advisory on behalf of Mark Marino ( "Marino "), a Member and the
Chairman of the Township Board of Supervisors. You have submitted facts that may be
fairly summarized as follows.
In his private capacity, Marino owns and operates a landscaping business.
Marino's business is currently performing landscaping services for a certain developer
( "Developer "). The work is in another municipality, and Marino's business is performing
the work as an independent contractor.
The Developer has submitted an application to the Township seeking to change
the zoning classification of a property that it plans to develop. The Board of Supervisors
will vote on whether to grant the Developer's request. That vote will not occur until after
Marino's company has fully completed its current work for the Developer. There is a
possibility that the Developer will hire Marino's company again in the future, although
there are no such offers or agreements at this time. Finally, you note that Marino has
no financial interest in the parcel of land that is the subject of the zoning change
request.
Based upon the above, you request an advisory as to Marino's duties with
respect to any potential vote pertaining to the Developer's request for a change of
zoning classification.
Skypala- Marino 03 -559
June 17, 2003
Page 2
Discussion: It is initial) 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 that the requestor has submitted. In issuing the advisory based
upon the facts that the requestor 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 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 Chairman of the Township Board of Supervisors, Marino 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.
65 Pa.C.S. § 1102.
"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,
organization, self - employed individual, holding company, 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.
Skypala- Marino 03 -559
June 17, 2003
Page 3
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).
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 each instance of a conflict of interest, the public official /public employee must
abstain from participation in his public capacity. The abstention requirement is not
limited merely to voting, but extends to any use of authority of office. In Juliante, Order
809, the Commission recognized that the use of authority of office as defined in the
Ethics Act includes, for example, discussing, conferring with others, and lobbying for a
particular result. In each instance of a conflict of interest, the public official must also
satisfy the disclosure requirements of Section 1103(j) set forth above.
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.
Skypala- Marino 03 -559
June 17, 2003
Page 4
In applying the above provisions of the Ethics Act to the instant matter, you are
advised that generally, a conflict of interest exists where a public official /public
employee, in his official capacity, participates, reviews or passes upon a matter
involving a business with which he is associated and /or private clients. Miller, Opinion
No. 89 -024; Kannebecker, Opinion No. 92 -010. A reasonable and legitimate
expectation that a business relationship will form may also support a finding of a conflict
of interest. Amato, Opinion No. 89 -002; Garner, Opinion No. 93 -004; Sn der, Order No.
979 -2, affirmed Snyder v. SEC, 686 A.2d 843 (Pa. Commw. Ct. 199 a oc. den., No.
0029 M.D. Allocatur Docket 1997 (Pa. December 22, 1997).
In Kannebecker, Opinion 92 -010, the State Ethics Commission determined that a
township supervisor, who in his private capacity was an attorney, would have a conflict
of interest as to matters before the township involving ongoing client(s) or client(s) for
whom he was on retainer, even if he would not represent such client(s) as to the matter
pending before the township. The Commission determined that as a general rule, a
conflict would not exist as to former client(s), but that under certain circumstances, a
conflict could exist as to former client(s) depending upon factors such as the number of
prior representations of the given client and the period of time over which such
occurred.
Marino's business is a business with which Marino, as its owner, is associated.
The Developer is currently a client /customer of Merino's business. This business
relationship was in existence at the time of the submission of the Developer's request
for a change of zoning classification. The submitted facts do not reveal whether
Marino's business has done other work in the past for the Developer. However, it is
clear per the submitted facts that the Developer may hire Marino's company to perform
landscaping work in the future.
Based upon the submitted facts, you are advised that Marino would have a
conflict of interest with regard to the Developer's request for a change of zoning
classification. This conclusion is based upon the following: (1) as of the time of the
Developer's submission of the request for a change of zoning classification, there was
an existing business relationship between Marino s company and the Developer; and
(2) there is a reasonable and legitimate expectation of future business relationship(s)
between Marino's business and the Developer so as to support a conflict of interest.
In each instance of a conflict of interest, Marino must abstain fully and satisfy the
disclosure requirements of Section 1103(j) of the Ethics Act above.
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 Member and the Chairman of the Skippack Township
(" I ownship") Board of Supervisors, Mark Marino ( "Marino ") 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. Marino's landscaping business is a business with which Marino, as its
owner, is associated. Pursuant to Section 1103(a) of the Ethics Act, Marino would have
a conflict of interest with regard to a request for a change of zoning classification
submitted by a developer ( "Developer "), when: (1) as of the time of the Developer's
submission of the request for a change of zoning classification, there was an existing
business relationship between Marino s company and the Developer; and (2) there is a
reasonable and legitimate expectation of future business relationship(s) between
Marino's business and the Developer so as to support a conflict of interest. Lastly, the
propriety of the proposed conduct has only been addressed under the Ethics Act.
Skypala- Marino 03 -559
June 17, 2003
Page 5
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