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HomeMy WebLinkAbout1828 FriedmanPHONE: 717-7831610 TOLL FIRLE: 1 -800-932-0936 In Re: David F. Friedman 11, Respondent sTxrE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET ROOM 309 HARRISBURG, PA 17120-0400 File Docket: Order No. Date Decided: Date Mailed: 22-0045-C 1828 10/4/23 10/6/23 Before: Michael A. Schwartz, Chair Rhonda Hill Wilson, Vice Chair Shelley Y. Simms Paul E. Parsells David L Reddecliff Robert P. Caruso This is a final adjudication of the State Ethics Commission. FACSIMILE 717-787-0806 WEBSITE: Qy Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation regarding possible violation(s) of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et sM., by the above -named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegation. Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer was filed, and a hearing was held. The record is complete. L ALLEGATION; That David F. Friedman 11, a public official as a Member of the Board of Supervisors of Upper Mount Bethel Township ("Township"), violated Section 11 03(a) of the Ethics Act when he used the authority of his public office by participating in deliberations and twice voting against motions of the Township Board of Supervisors, which eliminated his personal liability for counsel fees relating to a lawsuit that he and others had previously filed against the Township, 11. FINDINGS: A. Pleadings David F. Friedman 11 ("Friedman") has served as a Member of the Board of Supervisors ("Board") of Upper Mount Bethel Township ("Township"), Northampton County, since January 2022. 2. The Township is a Second Class Township governed by a five -Member Board. Friedman, 22-0045-C Page 2 3. On October 8, 2020, Friedman and five other Township residents — Charles A. Cole, Kyle Dutt, Richard Wilford -Hunt, Judith Henckel, and Howard Klein — filed a lawsuit against the Board ("the Lawsuit") in the Northampton County Court of Common Pleas ("Court of Common Pleas"). a. All of the Lawsuit plaintiffs were members of a group called "the Concerned Citizens of Upper Mount Bethel Township ("the CCUMBT"). b. The Lawsuit pertained to a Text Amendment enacted by the Board on September 9, 2020. 4. On July 27, 2021, the Court of Common Pleas dismissed the Lawsuit. 5. On August 17, 2021, Friedman and the other plaintiffs of the Lawsuit appealed the dismissal of the Lawsuit to the Commonwealth Court of Pennsylvania ("Commonwealth Court"). 6. In November 2021, the Township residents elected Friedman as a Township Supervisor. 7, On November 10, 2021, Friedman requested an advisory opinion from the State Ethics Commission ("Commission"). a. Friedman's November 10, 2021, letter to the Commission included the following: I must make the following points clear: 1. I am a plaintiff in the lawsuit against the Board of Supervisors. 2. I have contributed monetarily to the legal fund to pay for the lawyer. 3. 1 am an active member of the CCUMBT. 4. 1 have no financial interest or sought any financial gain in perusing [sic] this lawsuit. I would like an Advisory Opinion on the following questions that could arise during my tenure as a supervisor. l . Do I have to withdraw my name from the lawsuit in order to vote on issues pertaining to the Text Amendment? 2. If my name remains on the lawsuit would I need to recuse myself from any issues pertaining to the Text Amendment? 3. Will I need to disassociate from the CCUMBT? 8. On December 6, 2021, Friedman obtained an Advice of Counsel from the Commission that was docketed as Friedman, 21-562. The Advice of Counsel stated the following: [P]ursuant to Section 1103(a) above, you cannot use the authority of your public office as a Township Supervisor, or confidential information you would have Friedman, 22-0045-C Page 3 access to by being in that position, for a prohibited private pecuniary benefit. For example, a conflict of interest would exist should you, in your public position, engage in any Township deliberation, decision, or any other action involving the lawsuit such as by taking action to reduce or eliminate personal liability for counsel fees. See Lewis, Advice of Counsel 98-503. 9. On January 5, 2022, Friedman's attorney filed an Application for Withdrawal with the Commonwealth Court, and Friedman withdrew from the Lawsuit. 10. On May 16, 2022, the remaining Lawsuit plaintiffs agreed to withdraw their appeal. B. Testimony 11. Ronald J. Karasek, Esquire ("Karasek"), has provided legal services to the Township since 1998. a. Beginning in the 1970s, the Township had an industrial area of at least 700 acres that remained undeveloped. b. After a developer proposed a Text Amendment to facilitate the developer's proposed development of the industrial area, the Board adopted the Text Amendment. C. Friedman and other Township residents who were Members of the CCUMBT subsequently filed the Lawsuit in the Court of Common Pleas, alleging that the Township had improperly adopted the Text Amendment and seeking to vacate the Text Amendment. d. The Court of Common Pleas dismissed the Lawsuit on the basis that the plaintiffs should have filed their complaint with the Township Zoning Hearing Board and not the Court of Common Pleas. e. Although the plaintiffs appealed the dismissal of the Lawsuit to the Commonwealth Court, their appeal was subsequently withdrawn. f. Subsequent to the withdrawal of the appeal, the Board discussed in an executive session whether the Township should bring a claim against the CCUMBT for recovery of the Township's legal fees and costs. g. The Board subsequently voted not to bring a claim against the CCUMBT, with Friedman voting against bringing a claim. h. If the Board had decided to bring a claim against the CCUMBT, the claim would have been against the six plaintiffs of the Lawsuit, including Friedman. 12. Friedman was elected as a Township Supervisor in the general election in 2021, and he tools office in January 2022. Friedman, 22-0045-C Page 4 a. Friedman was a founding member of the CCUMBT, which was organized after the Board adopted the developer's proposed Text Amendment. b. During Friedman's election campaign, he took a stance against the Text Amendment. C. Before Friedman took office, he submitted a letter to the Commission which outlined his concerns about the Text Amendment and sought advice as to what actions lie could take with regard to the Text Amendment. d. It was Friedman's understanding that the Advice of Counsel issued to him by the Commission advised him to break away from the CCUMBT and withdraw from the Lawsuit. e. As a result of receiving the Advice of Counsel, Friedman wrote a letter to his attorney dated December 16, 2021, indicating that as of that date he withdrew his name as an appellant in the appeal of the dismissal of the Lawsuit which was pending in the Commonwealth Court and requesting that the necessary steps be taken to withdraw his name as an appellant. f. On February 4, 2022, the Commonwealth Court issued an Order that discontinued only Friedman's appeal of the dismissal of the Lawsuit. g. A motion to file a lawsuit against the six plaintiffs who had sued the Township over the adoption of the Text Amendment failed by a vote of 2-3, with Friedman voting against the motion. 1. Friedman testified that the motion also proposed attempting to recoup costs pertaining to Right -to -Know requests and that he voted against the motion because such costs cannot be recouped. h. Friedman testified that based upon Karasek's invoices, the legal fees which Karasek charged the Township in relation to the Lawsuit totaled $9,811.75 and that for the time period from October 31, 2020, through December 2021, the legal fees totaled $6,531.50, i. Friedman testified that he adhered to the advice of the Advice of Counsel issued to him "to the letter" and that his vote against the motion to sue the six Lawsuit plaintiffs to recover the Township's legal expenses adhered to the advice given to him by the Commission. j. Friedman testified that it was his understanding that he could not be held liable for any of the Township's legal expenses because he had been withdrawn from the Lawsuit pursuant to a court order. C. Exhibits Friedman, 22-0045-C Page 5 13. ID — 1 is an advisory request letter dated November 10, 2021, which was submitted to the Commission by Friedman and which states, in pertinent part, as follows: A developer purchased property in the township that was zoned industrial. He was not content with the zoning ordinances pertaining to this zone but did not want to go through the variance procedures to change the zoning ordinances. He submitted a Text Amendment to change the zoning ordinances in his favor. This Text Amendment was passed by the supervisors in a 4-1 vote. I, along with five others, sued the Board of Supervisors for passing this text amendment. We felt that it was detrimental to the township and would set a precedent for other development in the township. 1, along with about a dozen other citizens formed a coalition to raise awareness and funds for legal expenses in our lawsuit. This group is called the Concerned Citizens of Upper Mount Bethel Township (CCUMBT). Wanting to enact policy instead of reacting to it, I ran for the Board of Supervisors and was elected. My campaign platform emphasized keeping our township rural and fighting the Text Amendment. I must make the following points clear: I . I am a plaintiff in the lawsuit against the Board of Supervisors. 2. I have contributed monetarily to the legal fund to pay for the lawyer. 3. I am an active member of the CCUMBT. 4. 1 have no financial interest or sought any financial gain in perusing this lawsuit. I would like an Advisory Opinion on the following questions that could arise during my tenure as a supervisor. 1. Do I have to withdraw my name from the lawsuit in order to vote on issues pertaining to the Text Amendment? 2. If my name remains on the lawsuit would I need to recuse myself from any issues pertaining to the Text Amendment? 3. Will I need to disassociate from the CCUMBT? ID--1,at1. 14. ID --- 2 is Advice of Counsel 21-562, dated December 6, 2021, which was issued to Friedman by Chief Counsel Brian D. Jacism in response to Friedman's November 10, 2021, advisory request letter. a. Advice of Counsel 21-562 concluded, in pertinent part, as follows: In applying the above provisions of the Ethics Act to the circumstances which you have submitted, the fact that you are involved as a plaintiff in litigation against the Friedman, 22-0045-C Page 6 Township does not preclude you from holding office as a Township Supervisor. However, pursuant to Section I I03(a) above, you cannot use the authority of your public office as a Township Supervisor, or confidential information you would have access to by being in that position, for a prohibited private pecuniary benefit. For example, a conflict of interest would exist should you, in your public position, engage in any Township deliberation, decision, or any other action involving the lawsuit such as by taking action to reduce or eliminate personal liability for counsel fees. See Lewis, Advice of Counsel: 98-503. ID — 2, at 4. 15. ID -- 4 is a transcript of the May 23, 2022, work session meeting of the Board, which reads, in pertinent part, as follows: MR. TEEL: I'm malting the motion that we instruct our solicitor to look into filing the paperwork for recovery of a hundred thousand dollars or whatever the fee is that we expedited on this frivolous lawsuit. MR. PINTER: Okay. So -- MR. TEEL: The Court said it was a meritless lawsuit. Let's call it for what it was. MR. PINTER: Okay. So to clean up the motion a little bit, it would be to have [Township Solicitor Karasek] investigate the -- MR. TEEL: Cost. MR. PINTER: No, not the cost but investigate the legality of moving forward with a lawsuit on the defendants of the lawsuit that was pulled to recover the lost funds in defending a frivolous lawsuit. And am I -- MR. TEEL: Yeah, you can say that. MR. PINTER: Okay. MR. TEEL: I think we have the right to ask. MR. PINTER: Okay. Is there a second on the board to investigate the motion I discussed? MR. DUE: I'll make the second. MR. PINTER: There's a second. MR. DUE: For conversation. MR. PINTER: Conversation. Friedman, 22-0045-C Page 7 MR. DUE: I ask the question, because I guess there was a hundred thousand dollars in right -to -knows. Okay. (Inaudible comment) MR. DUE: No. But there were multiple right -to -knows from the plaintiffs for the same question. MR. KARASEK: Again, I would need to doublecheck that. If the township is requesting a recovery of costs and expenses for right -to -knows? I'm not quite sure if the township would be able to do that, but the legal fees and costs could be. MR. DUE: I just wanted to bring that forward. There were multiple requests for the same question. MR. PINTER: Okay. Understood. MR,'FEEL: I understand that. It wasn't really my intent for right -to -knows. But I have been in many court cases, and I'm not an attorney, but I've been in many court cases where the other side finds themselves liable for the legal expenses from one side or the other when they lose, and they lost. MR. KARASEK: And I would say that again, whether the right -to -knows, those costs are recoverable or not, I should at least see what the costs are so I can then in my own mind try to figure out what's what. So .. . MR. DUE: And just where I was going with that is was it conspired to same -- to throw the same question out so the taxpayers had to fund the bill. MR. KARASEK: Okay. Again, if I see all those figures or numbers, I can perhaps be a little bit more intelligent in making a recommendation to the board. MR. TEEL: I would not be so unhappy, but we went -- the three of us went through all kinds of hell on this board, through all the racial slurs, all the allegations of corruption, and everything else that were put out, and we suffered for that and they lost — [inaudible] MR. FRIEDMAN: [inaudible] feels the same way? MR. TEEL: Yeah. And all of the things that we had to endure because they were unhappy with the text amendment. MR. PINTER: Okay. So the motion has been seconded, we've had further discussion. All those in favor say aye? MR. DUE. Aye. MR. TEEL: Aye. Friedman, 22-0045-C Page 8 MR. PINTER: Aye, MR. BERMINGHAM: No. MR. FRIEDMAN: No. MR. PINTER: The motion carries 3-2. MR. FRIEDMAN: Yeah, who's going to pay for this litigation? ID-4, at 1t3-116. 16. ID — 5 consists of the minutes of the .Tune 13, 2022, meeting of the Board, which state, in pertinent part, as follows: XI. EXECUTIVE SESSION Legal -Chairman Pinter stated that a legal matter was discussed in Executive Session and asked if there were any motions to be made. MOTION by Supervisor Teel to direct our Solicitor to file the paperwork to countersue the applicants of the original lawsuit to recover the legal expenses that were incurred, the amount TBD, seconded by Supervisor Due. Discussion - Supervisor Bermingham stated that we will be wasting more taxpayer money trying to recover what was already spent. Supervisor Bermingham stated that the lawsuit was dropped, we need to work with the residents, not against them. Supervisor Teel stated that the lawsuit was only dropped because of the lawsuit that was filed by Pektor for $4 million each. Chairman Pinter stated that the good thing with the text amendment and the lawsuit is that it is over, no more legal battles back and forth. Chairman Pinter called for a vote. Vote: 2-3. ID-5,at5. 17. ID -- 6 is a transcript of the June 13, 2022, meeting of the Board, which reads, in pertinent part, as follows: MR. PINTER: All right. I call this meeting back into order. It's ten after nine. Okay. So the board went back, talked about a legal matter. So with that discussion, is there any motions that would like to be made by the board? MR. TEEL: I'll make the motion that we solicit -- or have our solicitor to file the paperwork to countersue the applicants of the original lawsuit to recover our legal expenses. MR. BERMINGHAM: And how much are we looking to recover here? Friedanan, 22-0045-C Page 9 MR. TEEL: Whatever the amount is -- MR. PINTER: I think we still need to determine that. MR. TEEL: -- that was expended. MR. FRIEDMAN: So that hundred thousand dollars is not a viable figure then? MR. PINTER: Sure it is. MR. FRIEDMAN: You just said it wasn't. MR. PINTER: I didn't say that. Clean your ears, David. MR. TEEL: We didn't say that. MR. FRIEDMAN: You said a hundred thousand dollars. Now you're saying -- MR. PINTER: No, no, no. Did I just say anything? MR. FRIEDMAN: The first amount was -- MR. PINTER: What did I say? MR. FRIEDMAN: -- a hundred thousand dollars. That's what the initial amount was. MR. PINTER: Legal expenses. MR. FRIEDMAN: Yeah. MR. PINTER: Okay? MR. TEEL: I just said the legal expenses to be recovered by this township of wasted township funds. MR. FRIEDMAN: To be determined? MR. PINTER: To be determined. MR. TEEL: To be determined by our accountant -- MR. PINTER: Solicitor and our accountants. MR. TEEL: -- and solicitor. So that's my motion, to file the paperwork. MR. BERMINGHAM: All right. I'll wait to see if it gets seconded. Friedman, 22-0045-C Page 10 MR. DUE: I'll definitely second that. MR. PINTER: Is there further discussion? MR. PINTER: All right. All those in favor say aye? MR. TEEL: Aye. MR. DUE: Aye. MR. BERMINGHAM: No. MR. PINTER: No. u TO ffimf 3 MEN Mli� MR. PINTER: Okay. It's over with. ID -- 6 at 108-109, 125-126. 18. ID -- 9 is a letter dated December 16, 2021, from Friedman to Robert N. Rust III, Esquire, which states, in pertinent part, as follows: Dear Attorney Rust, This is to advise you that as of this date, December 16, 2021, I withdraw my name as an Appellant in the case referenced above [Cole, et al v. The Board of Supervisors of Upper Mount Bethel Township, Commonwealth Court Docket No, 957 C.D. 2021], Having sought and received an opinion form the Pennsylvania State Ethics Commission that a conflict of interest exists between my pending service as a Supervisor of the Upper Mount Bethel Township Board of Supervisors and my continuing to be an Appellant in the above referenced case (see enclosed letter from counsel), I chose to eliminate the conflict by withdrawing my name as an Appellant. At your earliest opportunity, please give written notice to the Commonwealth Court and take whatever steps are needed by the Court to withdraw my name from the Appeal. 19. ID — 10 is an Order issued February 4, 2022, by the Commonwealth Court in the case captioned "Charles A. Cole, Kyle Dutt, David Friedman, Richard Wilford -Hunt, Judith Henckel, and Howard Klein, Appellants v. The Board of Supervisors of Upper Mount Bethel Township v. River Pointe Logistics Center, LLC," docket No. 957 C.D. 2021, which granted Friedman's Application for Removal and discontinued his appeal as against the Board and River Pointe Logistics Center, LLC. Friedman, 22-0045-C Page l 1 20. ID — I 1 is an invoice dated October 31, 2020, in the amount of $131.25, issued by Karasek Law Offices, LLC to the Township for services rendered in October 2020 in relation to "Cole et at vs. UMBT and RPL Lawsuit." 21. ID —12 is a second invoice dated October 31, 2020, in the amount of $1,125.00, issued by Karasek Law Offices, LLC to the Township for additional services rendered in October 2020 in relation to "Cole et at vs. UMBT and RPL Lawsuit." 22. ID — 13 is an invoice dated December 10, 2020, in the amount of $1,766.50, issued by Karasek Law Offices, LLC to the Township for services rendered in November 2020 in relation to "Cole et at vs. UMBT and RPL Lawsuit." 23. ID — 14 is an invoice dated January 6, 2021, in the amount of $350.00, issued by Karasek Law Offices, LLC to the Township for services rendered in December 2020 in relation to "Cole et al vs. UMBT and RPL Lawsuit." 24. ID --15 is an invoice dated February 5, 2021, in the amount of $481.25, issued by Karasek Law Offices, LLC to the Township for services rendered in January 2021 in relation to "Cole et at vs. UMBT and RPL Lawsuit." 25. ID — 16 is an invoice dated March 4, 2021, in the amount of $743.75, issued by Karasek Law Offices, LLC to the Township for services rendered in February 2021 in relation to "Cole et at vs. UMBT and RPL Lawsuit." 26. ID — 17 is an invoice dated April 6, 2021, in the amount of $831.25, issued by Karasek Law Offices, LLC to the Township for services rendered in March 2021 in relation to "Cole et at vs. UMBT and RPL Lawsuit." 27. ID —18 is an invoice dated May 4, 2021, in the amount of $181,25, issued by Karasek Law Offices, LLC to the Township for services rendered in April 2021 in relation to "Cole et at vs. UMBT and RPL Lawsuit." 28. ID — 19 is an invoice dated August 4, 2021, in the amount of $156.25, issued by Karasek Law Offices, LLC to the Township for services rendered in July 2021 in relation to "Cole et al vs. UMBT and RPL Lawsuit." 29. ID — 20 is an invoice dated September 8, 2021, in the amount of $131.25, issued by Karasek Law Offices, LLC to the Township for services rendered in August 2021 in relation to "Cole et at vs. UMBT and RPL Lawsuit." 30. ID — 21 is an invoice dated October 7, 2021, in the amount of $143.75, issued by Karasek Law Offices, LLC to the Township for services rendered in September 2021 in relation to "Cole et al vs. UMBT and RPL Lawsuit." 31. ID ---- 22 is an invoice dated November 3, 2021, in the amount of $671.25, issued by Karasek Law Offices, LLC to the Township for services rendered in October 2021 in relation to "Cole et al vs. UMBT and RPL Lawsuit." Friedman, 22-0045-C Page 12 32. ID --- 23 is an invoice dated December 8, 2021, in the amount of $118.75, issued by Karasek Law Offices, LLC to the Township for services rendered in November 2021 in relation to "Cole et al vs. UMBT and RPL Lawsuit." 33. ID — 24 is an invoice dated January 6, 2022, in the amount of $293.75, issued by Karasek Law Offices, LLC to the Township for services rendered in December 2021 in relation to "Cole et al vs. UMBT and RPL Lawsuit." 34. ID --- 25 is an invoice dated February 2, 2022, in the amount of $1,911.00, issued by Karasek Law Offices, LLC to the Township for services rendered in January 2022 in relation to "Cole et al vs. UMBT and RPL Lawsuit." 35. ID — 26 is an invoice dated March 9, 2022, in the amount of $125.00, issued by Karasek Law Offices, LLC to the Township for services rendered in February 2022 in relation to "Cole et al vs. UMBT and RPL Lawsuit." 36. ID — 27 is an invoice dated May 2, 2022, in the amount of $31,25, issued by Karasek Law Offices, LLC to the Township for services rendered in April 2022 in relation to "Cole et al vs. UMBT and RPL Lawsuit." 37. ID — 28 is an invoice dated June 9, 2022, in the amount of $618.75, issued by Karasek Law Offices, LLC to the Township for services rendered in May 2022 in relation to "Cole et al vs. UMBT and RPL Lawsuit." III. DISCUSSION: As a Member of the Board of Supervisors of Upper Mount Bethel Township ("Township") since January 2022, Respondent David F. Friedman lI ("Friedman") has been a public official subject to the provisions of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. §1101etse�c. The allegation as set forth in the Investigative Complaint/Findings Report is that Friedman violated Section 1103(a) of the Ethics Act when he used the authority of his public office by participating in deliberations and twice voting against motions of the Township Board of Supervisors, which eliminated his personal liability for counsel fees relating to a lawsuit that he and others had previously filed against the Township. Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is prohibited from engaging in conduct that constitutes a conflict of interest: § 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). Friedman, 22-0045-C Page 13 The term "conflict" or "conflict of interest" is 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. Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict" or "conflict of interest, 65 Pa.C.S. § 1102, 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. As a preliminary matter, Friedman has raised a demurrer as to this proceeding. In essence, Friedman is asserting that even if all of the material averments of the Investigative Complaint are accepted as true, there still would not be a basis for finding a violation of Section 1103(a) of the Ethics Act.' We must disagree. The Investigative Complaint on its face alleges conduct by Friedman which if proven would establish the requisite elements for a violation of Section 1103(a) of the Ethics Act, namely a use of authority of office by Friedman for a private pecuniary benefit. Accordingly, we deny the demurrer. We shall now summarize the relevant facts. The Township is governed by a five -Member Board of Supervisors ("Board"). On October 8, 2020, Friedman — who at that time was not yet a Member of the Board -- and five other Township residents filed a lawsuit against the Board ("the Lawsuit") in the Northampton County Court of Common Pleas ("Court of Common Pleas"). All of the Lawsuit plaintiffs were members of a group called "the Concerned Citizens of Upper Mount Bethel Township" ("the CCUMBT"). The Lawsuit alleged that on September 9, 2020, the Board had improperly adopted an ordinance ' A demurrer challenges the legal sufficiency of a complaint. Lutz v. Springettsbury Township, 667 A.2d 251 (Pa. Cmwlth. 1995). 1n ruling on a demurrer, all well -pleaded facts in the complaint must be accepted as true, but legal conclusions are not deemed admitted. Yocum v. Commonwealth. Pennsylvania Gaming Control Board, 639 Pa. 521, 161 A.3d 228 (2017). A demurrer may be sustained only where it is clear that on the facts averred by the complaint, no relief is possible. Homa v. Pa. Bd. of Prob. & Parole, 192 A.3d 329 (Pa. Cmwlth. 2018). Friedman, 22-0045-C Page 14 amending the text of the Township Zoning Ordinance ("the Text Amendment"). The Text Amendment had been proposed by a developer to facilitate the developer's plans to develop an industrial area in the Township. On July 27, 2021, the Court of Common Pleas dismissed the Lawsuit on the basis that the plaintiffs should have filed their complaint with the Township Zoning Hearing Board and not the Court of Common Pleas. On August 17, 2021, Friedman and the other Lawsuit plaintiffs appealed the dismissal of the Lawsuit to the Commonwealth Court of Pennsylvania ("Commonwealth Court"). In November 2021, Friedman was elected as a Township Supervisor. During his election campaign, Friedman took a stance against the developer's proposed Text Amendment that had been adopted by the Board. By way of a letter dated November 10, 2021, Friedman requested an advisory from this Commission. Friedman noted in his letter that he was a plaintiff in the Lawsuit, had contributed to the legal fund to pay for a lawyer, and was an active member of the CCUMBT. Friedman asked: (1) whether he would have to withdraw his name from the Lawsuit in order to vote on issues pertaining to the Text Amendment; (2) whether he would need to recuse himself from any issues pertaining to the Text Amendment if his name retrained on the Lawsuit; and (3) whether he would need to disassociate himself from the CCUMBT. On December 6, 2021, the Chief Counsel of this Commission issued Friedman, Advice of Counsel 21-562 ("Advice of Counsel 21-562"), to Friedman in response to his request for an advisory. Advice of Counsel 21-562 addressed Friedman's questions and further advised him, in pertinent part, as follows: [P]ursuant to Section 1103(a) above, you cannot use the authority of your public office as a Township Supervisor, or confidential information you would have access to by being in that position, for a prohibited private pecuniary benefit. For example, a conflict of interest would exist should you, in your public position, engage in any Township deliberation, decision, or any other action involving the lawsuit such as by taking,action to reduce or eliminate personal liability for counsel fees. See Lewis, Advice of Counsel 98.503. Advice of Counsel 21-562, at 4 (emphasis added). Following receipt of Advice of Counsel 21-562, Friedman sent a letter to Robert N. Rust III, Esquire, in which Friedman advised that as of December 16, 2021, he was withdrawing his name as an appellant in the Lawsuit. Friedman requested that the necessary steps be taken to withdraw his name from the appeal of the dismissal of the Lawsuit. In January 2022, Friedman took office as a Township Supervisor. On February 4, 2022, the Commonwealth Court issued an Order that granted the Application for Removal of Appellant David Friedman and discontinued only Friedman's appeal of the dismissal of the Lawsuit. On May 16, 2022, the remaining appellants agreed to withdraw their appeal of the dismissal of the Lawsuit. Invoices from the Township Solicitor, Ronald J. Friediraan, 22-0045-C Page 15 Karasek, Esquire, reflect that for the period of October 20, 2020, through June 9, 2022, he charged the Township legal fees totaling $9,911.75 for representing the Township in relation to the Lawsuit. Subsequent to the remaining appellants' withdrawal of their appeal of the dismissal of the Lawsuit, the Board discussed in an executive session whether the Township should bring a claim against the CCUMBT for recovery of the Township's legal expenses related to the Lawsuit. A transcript of the May 23, 2022, meeting of the Board reflects that Supervisor Robert Teel ("Supervisor Teel") made a motion to have the Township Solicitor investigate the legality of moving forward with a lawsuit against the Lawsuit plaintiffs to recover the Township's costs incurred in defending against the Lawsuit. Supervisor Teel's motion passed by a vote of 3-2, with Friedman voting against the motion. A transcript of the June 13, 2022, meeting of the Board reflects that Supervisor Teel made a motion "that we solicit -- or have our solicitor to file [sic] the paperwork to countersue the applicants [sic] of the original lawsuit to recover our legal expenses." Exhibit 1D-6, at 108. Supervisor Teel's motion failed by a vote of 2-3, with Friedman voting against the motion. Friedman's vote was the last vote cast on the motion. At the hearing in this matter, Friedman testified that the motion also proposed attempting to recoup costs pertaining to Right -to -Know requests and that he voted against the motion because such costs cannot be recouped. Friedman further testified that he believed that he could not be held liable for any of the Township's legal expenses related to defending against the Lawsuit because he had been withdrawn from the Lawsuit pursuant to the Order of the Commonwealth Court. Friedman additionally testified that he adhered to the advice of Advice of Counsel 21-562 "to the letter." Having set forth the material facts, we shall now outline the parties' respective positions/arguments. The Investigative Division asserts: • That Friedman. violated Section 1103(a) of the Ethics Act when he twice voted against motions pertaining to the Township suing the plaintiffs of the Lawsuit to recover the legal expenses that were incurred by the Township in defending against the Lawsuit; + That Friedman's vote was the deciding vote which defeated Supervisor Teel's motion to direct the Township Solicitor to file the paperwork to sue the Lawsuit plaintiffs; • That Friedman's testimony that he believed he could not be sued by the Township as one of the plaintiffs of the Lawsuit because he had withdrawn from the Lawsuit pursuant to the Order of the Commonwealth Court is not credible; • That Friedman's testimony that he adhered to the advice of Advice of Counsel 21-562 "to the letter" beggars belief; • That Friedman ignored the unequivocal and explicit advice of Advice of Counsel 21-562 that he would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to taking action as a Township Supervisor which would reduce or eliminate his personal liability for the Township's counsel fees; Friedman, 22-0045-C Page 16 • That although Friedman did not receive any money as a result of voting against the motions pertaining to the Township suing the Lawsuit plaintiffs, Friedman realized a pecuniary benefit as his actions prevented him from being sued as one of the Lawsuit plaintiffs and having to pay any of the Township's legal expenses; • That pursuant to Section 1107(13) of the Ethics Act, this Commission should order Friedman to pay restitution in an amount of at least $1,635.29, representing Friedman's share (i.e., one -sixth) of the Township's legal expenses which the Township was precluded from seeking to recover as a result of his actions; • That in addition to imposing restitution, this Commission should impose a treble penalty pursuant to Section 1109(c) of the Ethics Act, 65 Pa.C.S. § 1109(c); and • That this Commission should also refer this matter to the Pennsylvania Attorney General with our recommendation that a criminal prosecution be initiated against Friedman (see, Section 1107(13) of the Ethics Act, 65 Pa.C.S. § 1107(13)). Friedman has raised the following defenses/arguments: • That he followed the advice provided to him pursuant to Advice of Counsel 21-562 and removed himself from the Lawsuit and from his membership in the CCUMBT, and his reliance on Advice of Counsel 21-562 is a complete defense in this enforcement proceeding (see, Section 1107(11) of the Ethics Act, 65 Pa.C.S. § 1107(11)); • That he voted against Supervisor Teel's motion because it is illegal and improper to request payment of legal fees for Right -to -Know requests; • That he "involves the Noerr-Pennington doctrine to protect the right to petition the government including the filing of litigation"' (Brief of David F. Friedman Il, at 3); • That he obtained no pecuniary benefit whatsoever from the outcome of the Lawsuit and that he had no pecuniary interest whatsoever in any action taken by the Township; • That the evidence failed to prove the existence of any pecuniary gain realized by him (see, Commonwealth v. Veon,150 A.3d 438 (2016)); and • That this matter should be dismissed with prejudice. Having summarized the relevant facts and the positions/arguments of the parties, we must now determine whether Friedman's actions violated Section 1103(a) of the Ethics Act. As we apply the facts to the allegation, due process requires that we not depart from the allegation. P_ennsy v. Department of State, 594 A.2d 845 (Pa. Cmwlth. 1991). A violation of the Ethics Act mast be based upon clear and convincing proof. Section 1108(g) of the Ethics Act, 65 Pa.C.S. § 2 The Noerr-Pennington doctrine, discussed infra, takes its name from two United States Supreme Court cases, Eastern R.R. Presidents Conference v. Noerr Motor Freight,_ inc., 365 U.S. 127 (1961), and United Mine Workers of America v. Pennington, 381 U.S. 657 (1965). Friedman, 22-0045-C Page 17 1108(g). Clear and convincing proof is "so `clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue."' In Re: Charles E.D.M., 550 Pa. 595, 601, 708 A.2d 88, 91 (1998) (Citation omitted). Per the Pennsylvania Supreme Court's decision in Kistler v. State Ethics Commission, 610 Pa. 516, 22 A.3d 223 (2011), in order to violate Section 1103(a) of the Ethics Act, a public official/public employee: ... must act in such a way as to put his [office/public position] to the purpose of obtaining for himself a private pecuniary benefit. Such directed action implies awareness on the part of the [public official/public employee] of the potential pecuniary benefit as well as the motivation to obtain that benefit for himself. Kistler, supra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics Act, a public official/public employee "must be consciously aware of a private pecuniary benefit for himself, his family, or his business, and then must take action in the form of one or more specific steps to attain that benefit." Id., 610 Pa. at 528, 22 A.3d at 231. In applying the facts to the allegation, we find that the elements for a violation of Section 1103(a) of the Ethics Act have been established. Prior to taking office as a Township Supervisor, Friedman sought advice from this Commission with respect to what effect, if any, his involvement with the Lawsuit and the CCUMBT would have upon his ability to take various actions as a Township Supervisor. Advice of Counsel 21-562, which was issued to Friedman on December 6, 2021, clearly and unambiguously advised him that he would have a conflict of interest as a Township Supervisor with regard to engaging in any deliberation, decision, or other action involving the Lawsuit, including taking action to reduce or eliminate personal liability for counsel fees. Despite being explicitly warned that he would have a conflict of interest as to such matters, Friedman voted against a motion to have the Township Solicitor investigate the legality of moving forward with a lawsuit against the Lawsuit plaintiffs to recover the Township's costs incurred in defending against the Lawsuit. Although that motion passed by a vote of 3-2, Friedman subsequently cast the deciding vote of a 2-3 vote which defeated a motion to have the Township Solicitor file a lawsuit against the Lawsuit plaintiffs. Friedman's vote against the second motion thus had the effect of insulating him and the other Lawsuit plaintiffs from any personal liability for the Township's legal costs. Given that Friedman had been explicitly warned by Advice of Counsel 21-562 about his conflict of interest in engaging in actions that would reduce or eliminate personal liability for the Township's legal costs, the necessary conclusion is that he was consciously aware of a private pecuniary benefit and his official actions were steps to attain that benefit for himself. Kistler, supra. Friedman's testimony that he voted against the motion which failed by a vote of 2-3 because it also illegally proposed attempting to recoup costs pertaining to Right -to -Know requests is not credible for three reasons. First, a review of the transcript of the Board meeting at which the motion was made and voted on fails to reflect that any discussion about the recoupment of such costs took place, either in conjunction with the making of the motion or at any other time. Second, the meeting transcript fails to reflect that Friedman proffered any reason whatsoever for voting Friedman, 22-0045-C Page 18 against the motion. Third, the Township Solicitor, who was present at the meeting, did not raise any reservations on the record about the legality of the motion. Friedman's testimony that he believed he could not be held liable for any of the Township's legal expenses because he had withdrawn from the Lawsuit is not credible given that: (1) the Order of the Commonwealth Court which discontinued his appeal of the Lawsuit made no reference to liability for legal expenses; (2) to believe as he so claimed would have required him to ignore the fact that the majority of the Township's legal expenses were incurred while he was a Lawsuit plaintiff, and (3) transcripts of the meetings at which the recoupment of the Township's legal expenses from the Lawsuit plaintiffs was discussed fail to reflect that Friedman at any time indicated a belief that only the other five Lawsuit plaintiffs could be held liable for the Township's legal expenses. Lastly, Friedman's testimony that he adhered to the advice of Advice of Counsel 21-562 "to the letter" is clearly belied by the record. We therefore need not address his baseless argument that his "reliance" on Advice of Counsel 21-562 is a complete defense in this enforcement proceeding. It is not clear from Friedman's Brief what the basis is for his argument that he "invokes the Noerr-Pennington doctrine to protect the right to petition the government including the filing of litigation." The Noerr-Pennington doctrine derives from the First Amendment to the United States Constitution, which guarantees "the right of the people to petition the Government for a redress of grievances." U.S. Const. amend. 1. The Noerr-Pennington doctrine holds that those who exercise their First Amendment right to petition the government for redress of their grievances, including through litigation, are generally immune from antitrust liability when defending against antitrust claims predicated on the petitioning activity. Prof 1 Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49 (1993); Octane Fitness LLC v. ICON Health & Fitness Inc., 572 U.S. 545 (2014). Over the years, courts have applied the Noerr-Pennington doctrine outside of the context of the antitrust laws to protect citizens who petition the government for redress of their grievances from liability for damages under tort claims predicated on the petitioning activity. Penllyn Greene Assoes., L.P. v. Clouser, 890 A.2d 424 (Pa. Cmwlth. 2005). As these proceedings are not an attempt to hold Friedman, as a plaintiff of the Lawsuit, liable for damages resulting from his exercise of his First Amendment right to petition the government for redress of his grievances, the Noerr-Pennington doctrine is wholly inapplicable to these proceedings. Based upon the above, we hold that Friedman violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), when he used the authority of his public office by participating in deliberations and twice voting against motions of the Board, which resulted in the elimination of any personal liability for counsel fees relating to a lawsuit that he and others had previously filed against the Township. Having found a violation of Section 1103(a) of the Ethics Act by Friedman, we shall now address the issues of restitution and a treble penalty. The Investigative Division requests that we impose restitution in an amount of at least $1,635.29 (representing one -sixth of the legal expenses that the Township incurred from the filing of the Lawsuit through the termination of the appeal of the dismissal of the Lawsuit) plus a treble penalty. We certainly do not condone Friedman using the authority of his public position to prevent the Township from seeking to recover its legal costs from him and the other Lawsuit plaintiffs in blatant disregard of the advice provided to him by Friedman, 22-0045-C Page 19 Advice of Counsel 21-562. However, we shall not impose restitution or a treble penalty as there are legal issues unresolved by the record before us as to what extent Friedman may have been personally liable for the Township's legal costs, including but not limited to: (1) whether his withdrawal from the Lawsuit would have reduced such liability; (2) whether legal costs awarded to the Township would have been apportioned among the Lawsuit plaintiffs equally or whether each Lawsuit plaintiff would have been jointly and severally liable for such legal costs; and (3) whether any of the various expenses documented on the Township Solicitor's invoices would have been excluded from legal costs awarded to the Township. Turning to the matter of referral, although Friedman's conduct in this matter was a clear violation of the public trust, we do not find his conduct to be so egregious as to warrant referral of this matter to the Pennsylvania Attorney General for review. IV. CONCLUSIONS OF LAW: 1. As a Member of the Board of Supervisors of Upper Mount Bethel Township ("Township") since January 2022, Respondent David F. Friedman 11 ("Friedman") has been a public official subject to the provisions of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa. C.S. § 1101 et sec.. 2. Friedman violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), when he used the authority of his public office by participating in deliberations and twice voting against motions of the Township Board of Supervisors, which resulted in the elimination of any personal liability for counsel fees relating to a lawsuit that he and others had previously filed against the Township. In Re: David F. Friedman II, File Docket: 22-0045-C Respondent Date Decided: 10/4/23 Date Mailed: 10/6/23 ORDER NO. 1828 1. David F. Friedman 11, as a Member of the Board of Supervisors of Upper Mount Bethel Township ("Township"), violated Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1103(a), when he used the authority of his public office by participating in deliberations and twice voting against motions of the Township Board of Supervisors, which resulted in the elimination of any personal liability for counsel fees relating to a lawsuit that he and others had previously filed against the Township. BY THE COMMISSION, Michael A. Schwartz, Chair