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HomeMy WebLinkAbout04-587 ConfidentialADVICE OF COUNSEL August 20, 2004 04 -587 Re: Conflict; Public Official /Employee; Township Planning Commission; Township Board of Commissioners; Part -time Substitute Teacher; Private Pecuniary Benefit; Class /Subclass Exclusion; De Minimis Exclusion. This responds to your letter of July 21, 2004, by which you requested confidential advice from the State Ethics Commission. Issue: Whether under the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., a township commissioner who also serves as a planning commissioner member would have a conflict of interest as to participating in matters relating to a high school expansion project in the school district in which the township commissioner is employed as a part -time substitute teacher. Facts: As Solicitor for A Township, you seek a confidential advisory on behalf of B. You have submitted facts, which may be fairly summarized as follows. A Township is a township of the first class. The Township is governed by the A Township Board of Commissioners ( "Board "). The A Township Planning Commission ("Planning Commission "), which was created pursuant to the Pennsylvania Municipalities Planning Code ("MPC "), serves as a strictly advisory body to the Board; the Board has not delegated final decision making authority to the Planning Commission. B is both a member of the Board and the Planning Commission. In a private capacity, B is a part -time substitute teacher for the C School District. The School District has two high schools, including D High School, which is located within the Township. The School District is undergoing a capital improvements program, part of which involves a proposed major expansion of D High School. It is anticipated that the D High School expansion project will be a multi - million dollar project. In connection with that project, the School District has submitted to the Township a sketch plan for land development pursuant to the provisions of the Township's Subdivision and Land Development Ordinance and the MPC. The Township anticipates receiving a formal land development plan from the School District for review and recommendations by the Planning Commission to the Board, and for review and formal action by the Board. You state that there is no reason to believe that B's employment as a part -time substitute Confidential Advice, 04 -587 August 20, 2004 Page 2 teacher for the School District would be affected by any recommendations by the Planning Commission, or by any decisions by the Board, to either approve or disapprove the D High School expansion project. Based upon the foregoing submitted facts, you pose several issues, the substance of which may be summarized as follows. 1. Whether B, as a Planning Commission Member, would have a conflict of interest under Section 1103(a) of the Ethics Act as to participating in matters relating to the D High School expansion project; 2. Whether B, as a Township Commissioner, would have a conflict of interest under Section 1103(a) of the Ethics Act as to participating in matters relating to the D High School expansion project; and 3. Whether the "de minimis" exclusion or the "class /subclass exclusion" would apply to permit B to participate as a Township Commissioner and /or a Planning Commission Member. 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 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 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. In response to the first question, the facts which you have submitted indicate that the Planning Commission on which B serves is a purely advisory body. Under the Ethics Act and Regulations, members of planning commissions that are purely advisory and do not have the authority to expend public funds (other than to reimburse personal expenses) or to otherwise exercise the power of the State or any political subdivision thereof, are not public officials, but are subject to Sections 1103(b) and 1103(c) which apply to everyone. In that the power of the Planning Commission is limited to performing advisory functions only, then B as a Planning Commission member would not be considered a "public official" subject to the conflict of interest provisions of the Ethics Act. In response to your second question, it is clear that as a Township Commissioner, B would be considered a "public official" as that term is defined in the Ethics Act, and hence he would be 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 Confidential Advice, 04 -587 August 20, 2004 Page 3 "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. 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 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 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 Confidential Advice, 04 -587 August 20, 2004 Page 4 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. As to B participating in matters relating to the D High School expansion project, a conflict of interest would exist where his use of authority of office or confidential information would result in a private pecuniary benefit to himself, a member of his immediate family, or a business with which he or a member of his immediate family is associated. It is noted that a pecuniary benefit flowing to the School District would be insufficient to establish a conflict, as the School District would not be considered a "business" as that term is defined in the Ethics Act. 65 Pa.C.S. § 1102. See, Warso, Order 974. However, a pecuniary benefit inuring to B (as for example, where his official action to approve the expansion project would result in increased utilization of part -time substitute teachers) would form the basis for a conflict of interest under Section 1103(a) of the Ethics Act unless the "de minimis" exclusion or the "class /subclass" exclusion would apply. The de minimis exclusion precludes a finding of conflict of interest as to an action having a de minimis (insignificant) economic impact. 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; Graham, Opinion 95 -002 (citing Van Rensler, Opinion 90- 017); 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 Confidential Advice, 04 -587 August 20, 2004 Page 5 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. B would have a conflict of interest under Section 1103(a) of the Ethics Act as to participating in matters relating to the D High School expansion project where his use of authority of office or confidential information would result in a private pecuniary benefit to himself, and neither the de minimis exclusion nor the class /subclass exclusion would apply. In that there is a factual insufficiency as to whether B's participation in matters relating to the D High School expansion project would financially impact his employment as a part -time substitute teacher, a conclusive determination cannot be made as to whether a conflict of interest would exist and therefore the de minimis or the class /subclass exclusion would apply. In each instance of a conflict, B would be required to abstain from participating and to fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. 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 First Class Township Code or the Public School Code of 1949, as amended. Conclusion: As a Member of the A Township Planning Commission ( "Planning Commission "), a purely advisory body, B would not be considered a "public official" subject to the provisions of the Public Official and Employee Ethics Act ("Ethics Act "), 65 Pa.C.S. § 1101 et seq. However, as a Member of the A Township Board of Commissioners ( "Board "), B would be considered a "public official" subject to the Ethics Act. B would have a conflict of interest in participating in matters relating to the D High School expansion project, where his use of authority of office or confidential information would result in a private pecuniary benefit to himself, a member of his immediate family, or a business with which he or a member of his immediate family is associated. A pecuniary benefit flowing to the School District would be insufficient to establish a conflict, as the School District would not be considered a "business" as that term is defined in the Ethics Act. A pecuniary benefit inuring to B would form the basis for a conflict of interest under Section 1103(a) of the Ethics Act unless the "de minimis" exclusion or the "class /subclass" exclusion would apply. In that there is a factual insufficiency as to whether B's participation in matters relating to the D High School expansion project would financially impact his employment as a part -time substitute teacher, a conclusive determination cannot be made as to whether a conflict of interest would exist and therefore the de minimis or the class /subclass exclusion would apply. In each instance of a conflict, B would be required to abstain from participating and to fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. 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. Confidential Advice, 04 -587 August 20, 2004 Page 6 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