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HomeMy WebLinkAbout24-505 HillPHONE: 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 January 16, 2024 To the Requester: Lynn Hill Dear Ms. Hill: 24-505 This responds to your letter dated January 5, 2024, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the issue presented below: Issue: Whether, as the newly elected Controller 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 performing the duties of your public position, when: (1) in a private capacity, you are a Member of the Board of Directors of Citizens for Responsible Development-LST, an organization which opposes the proposed expansion of a landfill located in the Township; (2) the Township is currently a defendant in four legal actions filed in court by residents opposed to expanding the landfill; (3) Citizens for Responsible Development-LST provides funds to help pay the legal expenses of the residents who are involved in the four legal actions filed against the Township; and (4) you live approximately three miles away from the landfill, and you would not be affected personally by an expansion of the landfill. Brief Answer: Citizens for Responsible Development-LST is a business with which you are associated in your capacity as a Director. You would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to performing a particular duty of your public position as the Township Controller unless your use of the authority of your office would result in a private pecuniary (financial) benefit to you, a member of your immediate family, or a business with which you or a member of your immediate family is associated, such as Citizens for Responsible Development-LST. Hill, 24-505 January 16, 2024 Page 2 Facts: You request an advisory from the Commission based on submitted facts that may be fairly summarized as follows. Bethlehem Landfill owns a landfill located in the Township. Approximately twenty percent of the revenue received by the Township comes from landfill hosting fees. In 2022, Bethlehem Landfill began an effort to expand its landfill by seeking zoning changes and other relief needed for the expansion. As the majority of the Members of Township Council at that time were in favor of expanding the landfill, Township Council approved zoning changes and other relief requested for the landfill expansion. The Township is currently a defendant in four legal actions filed in the Northampton County Court of Common Pleas by residents opposed to expanding the landfill. A group of Township residents opposed to expanding the landfill formed a non-profit 501(c)(3) corporation named "Citizens for Responsible Development-LST" and began various efforts to stop the expansion. As part of these efforts, Citizens for Responsible Development-LST is providing funds to help pay the legal expenses of the Township residents who are involved in the four legal actions filed against the Township. For the past year you have been active with Citizens for Responsible Development-LST as a Member of its Board of Directors and a social media specialist. You have been involved in organizing fundraisers and networking with other communities in the area which also oppose expanding the landfill, and your role may be expanded to include attending local government meetings, public speaking, conducting meetings of residents, and other duties. You live approximately three miles away from the landfill, and you would not be affected personally by an expansion of the landfill. You oppose the expansion of the landfill because you want to see the surrounding woodlands protected. On January 2, 2024, you were sworn into office as the Controller for the Township. As a result of the election of new Members of Township Council in November 2023, the majority of the Members of Township Council now oppose the expansion of the landfill. You seek guidance as to whether your continued involvement with and work on behalf of Citizens for Responsible Development-LST would cause you to have a conflict of interest with regard to performing the duties of your position as the Township Controller. 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 not been submitted. It is the burden of the requester to truthfully disclose all material facts relevant Hill, 24-505 January 16, 2024 Page 3 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 11030) 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. 0) 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(a), 11030). 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 with which he or a member of his immediate family is associated. Hill, 24-505 January 16, 2024 Page 4 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. "Immediate family." A parent, spouse, child, brother or sister. "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. Hill, 24-505 January 16, 2024 Page 5 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 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 11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) 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. As the Township Controller, you are 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 a Director. Because Section 1103(a) of the Ethics Act (pertaining to conflict of interest) imposes restrictions upon you in your public capacity as the Township Controller rather than upon you in your private capacity, Section 1103(a) would not prohibit you from continuing your involvement with and work on behalf of Citizens for Responsible Development-LST. However, in your capacity as the Township Controller, you generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters that would financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated, such as Citizens for Responsible Development-LST. Accordingly, you would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to performing a particular duty of your public position as the Township Controller unless your use of the authority of your office would result in a private pecuniary (financial) benefit to you, a member of your immediate family, or a business with which you or a member of your immediate family is associated, such as 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 11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) 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. Hill, 24-505 January 16, 2024 Page 6 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. Respectfully, Bridget K. Guilfoyle Chief Counsel