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HomeMy WebLinkAbout04-550 EckhartIlene Marie Eckhart R.R. 1, Box 1596A Saylorsburg, PA 18353 ADVICE OF COUNSEL May 21, 2004 04 -550 Re: Conflict; Public Official /Employee; Supervisor; Township; Preservation Association; President; Litigation; Development; Plan Dear Ms. Eckhart: This responds to your faxed letter of April 21, 2004, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Ha.GS. § 1101 et seq., presents any prohibition or restrictions upon a township supervisor as to participating in the approval of a preliminary plan by an entity when the supervisor was president of an association that opposed the project before he became a supervisor and resigned from the association. Facts: You formerly served as President of the Blue Mountain Preservation Association (Association), an organization which has opposed the proposed Alpine Rose Resorts Project in Eldred Township. In November of 2003, you won the election for an Eldred Township Supervisor (Monroe County) and commenced your term of office in January of 2004. You resigned from your position with Blue Mountain Preservation Association in May 2003. You currently have no financial interest in Alpine Rose Resorts. You state that currently the Association and the Appalachian Trail Conference are parties to litigation regarding the supervisors' preliminary approval of the Alpine Rose Resorts Preliminary Plan. The litigation which commenced in October 2002 is currently pending before the Pennsylvania Commonwealth Court. The Alpine Rose developer has filed a Final Plan submission for consideration by the Board of Supervisors. Therefore, you request an Advice of Counsel as to whether you would have a conflict of interest in voting on this plan. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the i - 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the Eckhart 04 -550 May21, 2004 Page 2 inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a supervisor for Eldred Township, you are a public official as that term is defined in the Ethics Act, and hence you are subject to the provisions of that Act. Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The following terms 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, 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. "Financial interest." Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. 65 Pa.C.S. § 1102. In addition, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /employee Eckhart 04 -550 May21, 2004 Page 3 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. Section 1103(j) of the Ethics Act provides as follows: § 1103. Restricted activities (j) Voting conflict. - -Where voting conflicts are not otherw 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(j). In each instance of a conflict, Section 1103(j) requires the public official/ employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor. In the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Act, then voting is permissible provided the disclosure requirements noted above are followed. See, Pavlovic, Opinion 02 -005. In applying the above provisions of the Ethics Act to the instant matter, pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary 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 general issue you have raised has been addressed by the full Commission in DeLano, Opinion 88 -008 and Leonard, Opinion 88 -009. In the two companion cases, the issue was whether two township supervisors had a conflict as to a proposed landfill when they were members of a citizens group in litigation as to an incinerator on the proposed landfill site where the same persons owned the incinerator and proposed landfill. The Commission found a conflict but noted that if the supervisors removed themselves from the citizens group and withdrew from the lawsuit, the Ethics Act would not bar them from participating as to the proposed landfill or incinerator. Eckhart 04 -550 May21, 2004 Page 4 In applying the DeLano and Leonard Opinions to the instant matter, you would not have a conflict and could participate as to the Final Plan submission of the Alpine Rose Resorts Project before the township board subject to the following qualifications: you have no financial interest in Alpine Rose which you have factually stated to be the case; you have no connection with the Association which you have also stated is the case; you have no involvement or connection with Appalachian Trail Conference; you have no involvement or party status as to the pending lawsuit; and neither you, nor a member of your immediate family nor any business with which you or an immediate family member is associated has any financial interest as to the Alpine Rose. If all of the above criteria are met, you may consistent with Section 1103 of the Ethics Act participate as to the board's considerations of the Final Plan by Alpine Rose. 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. Specifically not addressed herein is the applicability of the Second Class Township Code. Conclusion: As a supervisor for Eldred Township, you are a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. You would not have a conflict and could participate as to the Final Plan submission of the Alpine Rose Resorts Project before the township board subject to the following qualifications: you have no financial interest in Alpine Rose; you have no connection with the Association; you have no involvement or connection with Appalachian Trail Conference; you have no involvement or party status as to the pending lawsuit; and neither you, nor a member of your immediate family nor any business with which you or an immediate family member is associated has any financial interest as to the Alpine Rose. If all of the above criteria are met, you may consistent with Section 1103 of the Ethics Act participate as to the board's considerations of the Final Plan by Alpine Rose. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), 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 requestor 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. Sincerely, Vincent J. Dopko Chief Counsel