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HomeMy WebLinkAbout02-621-S StarrDona L. Sjarr 53 W. 33 Street Reading, PA 19606 Re: Conflict; Public Official /Employee; Township Supervisor; Immediate Family; Spouse; Business With Which Associated; Business Client /Customer; Vote; Five - Member Board; Supplemental Advice. Dear Ms. Starr: ADVICE OF COUNSEL September 4, 2003 02 -621 -S This responds to your letter of August 4, 2003, by which you requested supplemental advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Ha.GS. § 1101 et seq., would present any prohibition or restrictions upon a township supervisor with regard to a request for relief from zoning regulations or a development plan relating to a proposed addition to a local parish, when the supervisor's spouse: (1) has previously performed work for the parish; (2) has a pending contract to perform additional work for the parish; and (3) may have a reasonable and legitimate anticipation of performing work for the parish as to the proposed addition. Facts: You initially requested an advisory from the State Ethics Commission by Mier of October 29, 2002. In response to your initial request, Advice 02 -621 was issued to you on December 2, 2002, which Advice is incorporated herein by reference. In your supplemental advisory request, you state that the Exeter Township Board of Supervisors ("Board") is comprised of five members. The Board will soon be considering a request for relief from zoning regulations. You state that you are aware that two Board members will vote for and two Board members will vote against the zoning request. You ask whether you may vote against the request for zoning relief when it comes before the five - member Board if the vote is two in favor and two against and you are otherwise disqualified from voting. 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 Starr 02 -621 -S Date Page 2 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 to the question you have posed, Mlakar, supra, makes it clear that it is only when the governmental body is unable to take official action because the majority or other legally required vote is unattainable due to the number of members required to abstain, that such abstaining members will be permitted to vote if proper disclosures are made. Thus, in the case of the Exeter Township Board of Supervisors, a five member board, three Supervisors would have to have a conflict under the Ethics Act in order to make the majority or other legally required vote "unattainable." Only in such an instance would you be permitted to vote on the matter under the voting exception 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 respective municipal code. Conclusion: As a Supervisor for Exeter Township, 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. Since the Exeter Township Board of Supervisors is a five - member board, three Supervisors would have to have a conflict under the Ethics Act in order to make the majority or other legally required vote of approval "unattainable." Only in such an instance would you be permitted to vote on the matter under the voting conflict exception of Section 11030) 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