Loading...
HomeMy WebLinkAbout24-515 WolskiPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: Ted Wolski Dear Mr. Wolski: STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov ADVICE OF COUNSEL March 11, 2024 24-515 This responds to your letter received February 23, 2024, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the issue presented below: Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon a township supervisor who owns two part-time short-term rentals in the township with regard to voting on a proposed resolution that would cap the number of short-term rental permits issued by the township at ten percent of the number of residences in the township. BriefAnswer: The township supervisor would not have a conflict of interest and would not violate Section 1103(a) of the Ethics Act by voting on the proposed resolution that would impose a cap on the number of short-term rental permits issued by the township unless: (1) the township supervisor would be consciously aware of a private pecuniary (financial) benefit for himself, a member of his immediate family, or a business with which he or a member of his immediate family is associated; (2) his 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 Section 1102 of the Ethics Act would be applicable;1 and (4) his voting would not fall within a statutory exception under Section 11030) of the Ethics Act. i Action that has a de minimis (insignificant) economic nnpact 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 mmriediate family, or a business with which he or a member of his mmriediate family is associated, does not constitute a conflict of interest. Wolski, 24-515 March 11, 2024 Page 2 Facts: You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. You took office as a Supervisor for Tobyhanna Township ("Township") in January 2024. In a private capacity, you are an independent manufacturer's representative. You are also the owner of two part-time short-term rentals in the Township. These short-term rentals have represented less than ten percent of your total income over the last several years. On February 20, 2024, the Township Board of Supervisors voted 4-0 to amend the Township's short-term rental ordinance to increase the occupancy allowed for short-term rentals and to reduce the fines imposed on non -compliant short-term rental properties. You state that you did not participate in the discussion or vote on these amendments to the Township's short-term rental ordinance because these amendments could have a financial impact on you. On March 18, 2024, the Township Board of Supervisors will consider a resolution that would cap the number of short-term rental permits issued by the Township at ten percent of the number of residences in the Township. Such a cap would affect every homeowner in the Township. You state that you have no intention of buying any more short-term rental properties in the foreseeable future. Based upon the above submitted facts, you ask whether you would have a conflict of interest with regard to voting on the proposed resolution that would impose a cap on the number of short-term rental permits issued by the Township. 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 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 of the 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 of the 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 Wolski, 24-515 March 11, 2024 Page 3 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), 0). 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. 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, Wolski, 24-515 March 11, 2024 Page 4 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. "De minimis economic impact." An economic consequence which has an insignificant effect. 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. 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. 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. A conflict of interest would not exist to the extent the "de minimis exclusion" or the "class/subclass" exclusion set forth within the Ethics Act's definition of the term "conflict" or "conflict of interest" would be applicable. Wolski, 24-515 March 11, 2024 Page 5 The de minimis exclusion precludes a finding of conflict of interest as to an action having a de minimis (insignificant) economic impact. Thus, when a matter that would otherwise constitute a conflict of interest under the Ethics Act would have an insignificant economic impact, a conflict would not exist and Section 1103(a) of the Ethics Act would not be implicated. See, Kolb, Order 1322; Schweinsburg, Order 900. The Commission has determined the applicability of the de minimis exclusion on a case -by -case basis, considering all relevant circumstances. In order for the class/subclass exclusion to apply, two criteria must be met: (1) the affected public official/public employee, immediate family member, or business with which the public official/public employee or immediate family member is associated must be a member of a class consisting of the general public or a true subclass consisting of more than one member; and (2) the public official/public employee, immediate family member, or business with which the public official/public employee or immediate family member is associated must be affected "to the same degree" (in no way differently) than the other members of the class/subclass. 65 Pa.C.S. § 1102; see, Kablack, Opinion 02-003; Rubenstein, Opinion 01-007. The first criterion of the exclusion is satisfied where the members of the proposed subclass are similarly situated as the result of relevant shared characteristics. The second criterion of the exclusion is satisfied where the individual/business in question and the other members of the class/subclass are reasonably affected to the same degree by the proposed action. Kablack, supra. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As a Township Supervisor, you are a public official subject to the provisions of the Ethics Act. As a Township Supervisor, 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. You would not have a conflict of interest and would not violate Section 1103(a) of the Ethics Act by voting on the proposed resolution that would impose a cap on the number of short- term rental permits issued by the Township 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 the de minimis exclusion nor the class/subclass exclusion to the definition of "conflict" or "conflict of interest" as set forth in the Ethics Act would be applicable; and (4) your voting would not fall within a statutory exception under Section 11030) of the Ethics Act. The submitted facts do not enable a conclusive determination as to whether the de minimis exclusion or the class/subclass exclusion would be applicable as to any potential financial impact upon you or your short-term rentals. As noted above, 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 Wolski, 24-515 March 11, 2024 Page 6 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. 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