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HomeMy WebLinkAbout24-577 Gruenloh 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 11, 2024 To the Requester: Matt Gruenloh 24-577 Dear Mr. Gruenloh: This responds to your letter dated November 27, 2024, by which you requested an advisory from the Pennsylvania State Ethics Commission (“State Ethics Commission”), seeking guidance as to the issue presented below: Issue: Whether, as a Member of the Planning Commission of Clifton Township (“Township”), Lackawanna County, Pennsylvania, 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 discussions or votes of the Township Planning Commission pertaining to an individual’s conditional use application that seeks approval to develop a bed and breakfast inn on property located in close proximity to your property. Brief Answer: NO. Upon review of the relevant facts, in your capacity as a Member of the Township Planning Commission, you are not a “public official” subject to the provisions of the Ethics Act. Consequently, you are not subject to the conflict of interest restrictions of Section 1103(a) of the Ethics Act. Accordingly, the Ethics Act would not prohibit you from participating in discussions or votes of the Township Planning Commission pertaining to the individual’s conditional use application to develop a bed and breakfast inn. Facts: As a Member of the Township Planning Commission, you request an advisory from the State Ethics Commission based upon submitted facts that may be fairly summarized as follows. Gruenloh, 24-577 December 11, 2024 Page 2 Jean and Kevin Gilbride own a parcel of property (“the Property”) in the Township. The Property is in a Low-Density, Single-Family Housing, Residential District (R-1). You and your wife live on a parcel of property located directly across the road from the Property. In 2023, Mr. Gilbride filed an application for a special exception (“Application for a Special Exception”) to use the Property as a wedding/special event venue. After Mr. Gilbride’s Application for a Special Exception was denied by the Township Zoning Officer, Mr. Gilbride appealed the denial to the Township Zoning Hearing Board. At a hearing held by the Township Zoning Hearing Board on May 31, 2023, you and your wife were recognized as parties to the proceeding due to the proximity of the Property to the property where you live. At the hearing, you and your wife provided commentary in support of the denial of Mr. Gilbride’s Application for a Special Exception. On October 19, 2023, the Township Zoning Hearing Board denied Mr. Gilbride’s Application for a Special Exception. Mr. Gilbride has now filed a conditional use application (“Conditional Use Application”) that seeks permission to develop a bed and breakfast inn on the Property. Mr. Gilbride’s Conditional Use Application will be reviewed by the Township Planning Commission, which will then make a recommendation to the Township Board of Supervisors. At a recent meeting of the Township Zoning Hearing Board on an unrelated issue, Mr. Gilbride approached another Member of the Township Planning Commission and made the claim that you have a conflict of interest with regard to voting on his Conditional Use Application as a result of being a party with respect to the denial of his Application for a Special Exception. You ask whether you would have a conflict of interest under the Ethics Act with regard to participating in discussions or votes of the Township Planning Commission pertaining to Mr. Gilbride’s Conditional Use Application. It is administratively noted that the Township Board of Supervisors appoints the Members of the Township Planning Commission pursuant to § 1-201 of the Township of Clifton Code of Ordinances (“Code of Ordinances”). Under § 1-211 of the Township Code of Ordinances, the Township Planning Commission shall have all the powers and duties enumerated within the Pennsylvania Municipalities Planning Code, 53 P.S. § 10201 et seq. The Code of Ordinances further provides that the Township Planning Commission has the power to: (1) prepare and adopt a plan of development for the Township that shows the Township Planning Commission’s land use recommendations; (2) make or cause to be made surveys and recommend the location of lines for boundaries of future public areas; (3) make recommendations on proposed changes or additions to the Township official map; and (4) make recommendations on subdivision layout or plot maps. See, §§ 1-207, 1-208, and 1-209 of the Code of Ordinances. Discussion/Conclusion: 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 State Ethics Commission does not engage in an independent investigation of the Gruenloh, 24-577 December 11, 2024 Page 3 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. The term "public official" is defined in the Ethics Act as follows: § 1102. Definitions "Public official." Any person elected by the public or elected or appointed by a governmental body or an appointed official in the executive, legislative or judicial branch of this Commonwealth or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense or to otherwise exercise the power of the State or any political subdivision thereof. 65 Pa.C.S. § 1102. The Regulations of the State Ethics Commission similarly define the term "public official" and set forth the following additional criteria that are used to determine whether the advisory board exception applies: (i) The following criteria will be used to determine if the exception in this paragraph is applicable: (A) The body will be deemed to have the power to expend public funds if the body may commit funds or may otherwise make payment of moneys, enter into contracts, invest funds held in reserves, make loans or grants, borrow money, issue bonds, employ staff, purchase, lease, acquire or sell real or personal property without the consent or approval of the governing body and the effect of the power to expend public funds has a greater than de minimis economic impact on the interest of a person. (B) The body will be deemed to have the authority to otherwise exercise the power of the Commonwealth or a political subdivision if one of the following exists: (I) The body makes binding decisions or orders adjudicating substantive issues which are appealable to a body or person other than the governing authority. (II) The body exercises a basic power of government and performs essential governmental functions. Gruenloh, 24-577 December 11, 2024 Page 4 (III) The governing authority is bound by statute or ordinance to accept and enforce the rulings of the body. (IV) The body may compel the governing authority to act in accordance with the body's decisions or restrain the governing authority from acting contrary to the body's decisions. (V) The body makes independent decisions which are effective without approval of the governing authority. (VI) The body may adopt, amend and repeal resolutions, rules, regulations or ordinances. (VII) The body has the power of eminent domain or condemnation. (VIII) The enabling legislation of the body indicates that the body is established for exercising public powers of the Commonwealth or a political subdivision. (ii) The term does not include judges and inspectors of elections, notary publics and political party officers. (iii) The term generally includes persons in the following offices: (A) Incumbents of offices filled by nomination of the Governor and confirmation of the Senate. (B) Heads of executive, legislative and independent agencies, boards and commissions. (C) Members of agencies, boards and commissions appointed by the General Assembly or its officers. (D) Persons appointed to positions designated as officers by the Commonwealth or its political subdivisions. (E) Members of municipal, industrial development, housing, parking and similar authorities. (F) Members of zoning hearing boards and similar quasi- judicial bodies. (G) Members of the public bodies meeting the criteria in paragraph (i)(A). Gruenloh, 24-577 December 11, 2024 Page 5 51 Pa. Code § 11.1. In applying the Ethics Act’s definition of the term “public official,” the first portion of the definition provides that a public official is a person who is: (1) elected by the public; (2) elected or appointed by a governmental body; or (3) an appointed official in the executive, legislative or judicial branch of the Commonwealth of Pennsylvania or a political subdivision of the Commonwealth. Muscalus, Opinion 02-007. When the first portion of the definition is met, status as a public official subject to the Ethics Act is established, unless the exclusion for members of purely advisory boards is applicable. Eiben, Opinion 04-002. The fact that Members of the Township Planning Commission are appointed by the Township Board of Supervisors satisfies the first portion of the definition. In considering the remainder of the definition, the necessary conclusion is that you would fall within the statutory exclusion for members of advisory boards lacking authority to expend public funds other than reimbursement for personal expense or to otherwise exercise the power of the State or any political subdivision thereof. In considering the duties and responsibilities of the Township Planning Commission as delineated by the Pennsylvania Municipalities Planning Code and the Code of Ordinances, it is clear that the Township Planning Commission is a purely advisory board. Therefore, in your capacity as a Member of the Township Planning Commission, you are not a “public official” subject to the Ethics Act. Consequently, you are not subject to the conflict of interest restrictions of Section 1103(a) of the Ethics Act. Accordingly, the Ethics Act would not prohibit you from participating in discussions or votes of the Township Planning Commission pertaining to Mr. Gilbride’s Conditional Use Application. The only provision of the Ethics Act that applies to you is Section 1103(b), which applies to everyone. For your information, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer or give to a public official/public employee anything of monetary value and no public official/public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official/public employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of 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 State Ethics 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. Gruenloh, 24-577 December 11, 2024 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 State Ethics Commission. A personal appearance before the State Ethics Commission will be scheduled and a formal Opinion will be issued by the State Ethics Commission. Any such appeal must be in writing and must be actually received at the State Ethics 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 State Ethics Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717-787-0806). Failure to file such an appeal at the State Ethics Commission within thirty (30) days may result in the dismissal of the appeal. Respectfully, Bridget K. Guilfoyle, Chief Counsel