HomeMy WebLinkAbout23-535-S deLeon
PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806
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613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL
December 27, 2023
To the Requester:
Priscilla deLeon
23-535-S
Dear Ms. deLeon:
This responds to your email received December 15, 2023, by which you requested a
supplemental advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking
guidance as to the issue presented below:
Issue:
Whether, pursuant to Section 1103(a) of the Public Official and Employee Ethics Act
(“Ethics Act”), 65 Pa.C.S. § 1103(a), a member of a township council would have a conflict
of interest with regard to voting on a conditional use application that seeks permission to
construct a wireless communications facility/cell phone tower on property adjacent to the
township council member’s residential property.
Brief Answer: The township council member would not have a conflict of interest and
would not violate Section 1103(a) of the Ethics Act by voting on the conditional use
application unless: (1) the township council member would be consciously aware of a
private pecuniary (financial)benefit for herself, a member of her immediate family, or a
business with which she or a member of her immediate family is associated; (2) her
action(s) would constitute one or more specific steps to attain that benefit; (3) neither of
the statutory exclusions to the definition of “conflict” or “conflict of interest” as set forth
1
in the Ethics Act, 65 Pa.C.S. § 1102, would be applicable,and (4) her voting would not
fall within a statutory exception under Section 1103(j) of the Ethics Act.
1
Action that has a de minimis (insignificant) economic impact or that 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, does not constitute a conflict of interest.
deLeon, 23-535-S
December 27, 2023
Page 2
Facts:
By letter dated May 25, 2023, you initially requested an advisory from the Commission.
In response to your initial advisory request, deLeon, Advice of Counsel 23-535, was issued to you
on June 9, 2023.
Advice of Counsel 23-535 was based upon submitted facts that were summarized as
follows:
You are a Member of Council for Lower Saucon Township
(“Township”), located in Northampton County, Pennsylvania.
Township Council has an established policy whereby an application
submitted to the Township Zoning Hearing Board is first reviewed
by Township Council, which then decides upon its position before
the Township Zoning Hearing Board with respect to the application
(i.e., support, opposition, no position).
On April 26, 2023, an application for variances (“the
Application”) from the Township Zoning Ordinance was submitted
to the Township Zoning Hearing Board by Allentown SMSA
Limited Partnership d/b/a Verizon Wireless (“the Applicant”). The
Applicant is requesting several variances for a property that it is
leasing from Rocco and Heather Viscito (“the Viscitos”). The
Applicant proposes to construct a wireless communications
facility/cell phone tower on the Viscitos’ property. Your residential
property is adjacent to the Viscitos’ property.
Based upon the above submitted facts, the question that is
posed by your advisory request is whether you would have a conflict
of interest with regard to reviewing the Application and voting as to
Township Council’s position before the Township Zoning Hearing
Board with respect to the Application.
deLeon¸ Advice of Counsel 23-535, at 2.
Advice of Counsel 23-535 determined that as a Member of Township Council, you are a
public official subject to the provisions of the Ethics Act. The Advice concluded as follows:
You would not have a conflict of interest and would not
violate Section 1103(a) of the Ethics Act by reviewing the
Application and voting as to Township Council’s position before the
Township Zoning Hearing Board with respect to the Application
unless: (1) you would be consciously aware of a private pecuniary
(financial) benefit for yourself, a member of your immediate family,
or a business with which you or a member of your immediate family
is associated; (2) your action(s) would constitute one or more
deLeon, 23-535-S
December 27, 2023
Page 3
specific steps to attain that benefit; and (3) neither of the statutory
exclusions to the definition of “conflict” or “conflict of interest” as
set forth in the Ethics Act, 65 Pa.C.S. § 1102, would be applicable.
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.
deLeon, Advice of Counsel 23-535, at 5.
In your email of December 15, 2023, you state that the Application, which requested
variances for the Viscitos’ property in order to construct a wireless communications facility/cell
phone tower on their property, has been withdrawn by the Applicant. You further state that on
November 17, 2023, the Township received a conditional use application from the Applicant (“the
Conditional Use Application”) which seeks permission to construct a wireless communications
facility/cell phone tower on the Viscitos’ property. You state that a hearing on the Conditional
Use Application has been scheduled for January 17, 2024.
In light of the above facts, you ask whether you would have a conflict of interest with
regard to voting on the Conditional Use Application.
Discussion/Conclusion:
This supplemental advisory incorporates herein by reference the quotations, citations, and
commentary as to the Ethics Act set forth within deLeon, Advice of Counsel 23-535.
In response to your request for a supplemental advisory, you are advised as follows.
As a Member of Township Council, you are a public official subject to the provisions of
the Ethics Act. You would not have a conflict of interest and would not violate Section 1103(a)
of the Ethics Act by voting on the Conditional Use Application unless: (1) you would be
consciously aware of a private pecuniary (financial) benefit for yourself, a member of your
immediate family, or a business with which you or a member of your immediate family is
associated; (2) your action(s) would constitute one or more specific steps to attain that benefit; (3)
neither of the statutory exclusions to the definition of “conflict” or “conflict of interest” as set forth
in the Ethics Act, 65 Pa.C.S. § 1102, would be applicable; and (4) your voting would not fall within
a statutory exception under Section 1103(j) of the Ethics Act.
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.
deLeon, 23-535-S
December 27, 2023
Page 4
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 availableas 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 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 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.
Respectfully,
Bridget K. Guilfoyle
Chief Counsel