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HomeMy WebLinkAbout23-560 Ray PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL December 27, 2023 To the Requester: Laura Ray 23-560 Dear Ms. Ray: This responds to your email received November 27, 2023, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the issue presented below: Issue: Whether, as a newly elected Member of Council for Lower Saucon Township (“Township”), you would have a conflict of interest under Section 1103(a) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), with regard to participating in matters before Township Council pertaining to three legal actionsinitiated against the Township by individuals opposed to the proposed development of a landfill on 275 acres offorestland in the Township, when: (1) in a private capacity, you are an officer of Citizens for Responsible Development-LST, an organization which also opposes the proposed landfill and provides financial and other support to the individuals involved in the landfill litigation against the Township; and (2) Citizens for Responsible Development- LST is not named as a party in any of the three legal actions nor does it own or have an interest in the forestland at issue. Brief Answer: Pursuant to Section 1103(a) of the Ethics Act, as a Member of Township Council, you generally would have a conflict of interest in matters that would financially impact youor a business with which you are associated such as Citizens for Responsible Development-LST. You would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in matters before Township Council pertaining to the landfilllitigationwherethe submitted facts do not indicate thatany action(s)taken by Ray, 23-560 December 27, 2023 Page 2 Township Council with regard to any of the landfill litigation would financially impact you or Citizens for Responsible Development-LST. Facts: You request an advisory from the Commission based on submitted facts that may be fairly summarized as follows. In November 2023, you were elected as a Member of Township Council for a four-year term. You will be sworn into office on January 2, 2024. In a private capacity, you are an officer of Citizens for Responsible Development-LST, which was formed in 2023 to help preserve 275 acres of forestland in the Township from being developed as a landfill. Through public statements and organizing activity, Citizens for Responsible Development-LST actively opposed actions by Township Council to rezone the forestland. There are three legal actions pending against the Township which are related to the rezoning of the forestland and the proposed development of the forestland as a landfill. The Township is a defendant in a declaratory judgment action which seeks to enforce conservation easements on the forestland. The other two legal actions involve challenges to Township Council’s adoption of an ordinance which rezoned the forestland. A fourth legal action may be brought against the Township to challenge any land development preliminary approval given by the current Township Council. These three legal actions were brought against the Township by Township residents who are members of Citizens for Responsible Development-LST. Citizens for Responsible Development-LST is not named as a party in any of the three legal actions nor does it own or have an interest in the forestland at issue. Citizens for Responsible Development-LST raises funds from various sources and uses some of those funds to help pay the legal expenses of the Township residents who are involved in the legal actions brought against the Township. Citizens for Responsible Development-LST also actively and publicly supports these Township residents with respect to their litigation against the Township. You seek guidance as to whether you would have a conflict of interest with regard to participating in matters before Township Council pertaining to the proposed landfill, including the legal actions brought against the Township and zoning issues involving the forestland. Discussion: Pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have Ray,23-560 December 27, 2023 Page 3 not been submitted. It is the burden of the requester to truthfully disclose all material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all material facts. Sections 1103(a) and 1103(j) of the Ethics Act provide: § 1103. Restricted activities (a)Conflict of interest.--No public official or public employee shall engage in conduct that constitutes a conflict of interest. (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 ofthis 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(a), 1103(j). The following terms related to Section 1103(a) 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 Ray, 23-560 December 27, 2023 Page 4 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, 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. Subject to the statutory exclusions to the Ethics Act’s definition of the term “conflict” or “conflict of interest” (i.e., the “de minimis exclusion” and the “class/subclass exclusion”), 65 Pa.C.S. § 1102, a public official/public employee is prohibited from using the authority of public office or confidential information received by holding such a public position for the private pecuniary (financial) 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. The use of authority of office is not limited merely to voting but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. 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 Ray, 23-560 December 27, 2023 Page 5 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 each instance of a conflict of interest, a public official/public employee would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. Upon taking office as a Member of Township Council, you would become a public official subject to the provisions of the Ethics Act. Citizens for Responsible Development-LST is a business with which you are associated in your capacity as an officer. Pursuant to Section 1103(a) of the Ethics Act, you generally would have a conflict of interest as a Member of Township Council in matters that would financially impact you or Citizens for Responsible Development-LST. You would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in matters before Township Council pertaining to the current landfill litigation initiated against the Township as the submitted facts do not indicate that any action(s) taken by Township Council with regard to any of litigation would financially impact you or Citizens for Responsible Development-LST. As to other matters pertaining to the landfill that may come before Township Council, such as future litigation involving the Township or zoning issues, you would not have a conflict of interest and would not violate Section 1103(a) of the Ethics Act by participating in such matters unless there would be some basis for a conflict of interest such as a private pecuniary (financial) benefit to you or Citizens for Responsible Development-LST. In each instance of a conflict of interest, you would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, 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 requester 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. Ray, 23-560 December 27, 2023 Page 6 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 receivedat 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 theCommission 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. Respectfully, Bridget K. Guilfoyle Chief Counsel