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HomeMy WebLinkAbout05-500 McCulloughCharles P. McCullough, Esquire Tucker Arensberg, P.C. 1500 One PPG Place Pittsburgh, PA 15222 Re: Conflict; Public Official; Township Commissioner; Cellular Telephone Communications Tower; Lawsuit Against Township; Land Use Approval; Lease. Dear Mr. McCullough: ADVICE OF COUNSEL January 5, 2005 05 -500 This responds to your letters of October 28, 2004, and November 30, 2004, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., presents any prohibition or restrictions upon township commissioners as to matters involving a controversial cellular telephone communications tower where: (1) such matters are expected to include pending litigation against the township; (2) no individual township commissioners have been named as parties to the litigation; (3) two of the township commissioners served on the board when it previously authorized /executed a long -term ground lease with the cell tower owner and exempted the cell tower from the township's zoning code; and (4) a third individual, prior to being elected township commissioner, made a contribution to a "litigation fund" to assist in the payment of plaintiffs' counsel fees in the litigation against the township and the cell tower owner. Facts: As Solicitor to the Township of Upper St. Clair ( "Township "), you have been authorized to seek an advisory from the State Ethics Commission on behalf of all seven members of the Township Board of Commissioners ( "Board "). You have submitted facts, the material portion of which may be fairly summarized as follows. In 1996, pursuant to an ordinance of the Board, the Township executed a long- term ground lease with Crown Communications ( "Crown ") to permit Crown to construct a cellular telephone communications tower within a Township park. The Board also passed an ordinance exempting the cell tower from the requirements of the Township's Zoning Code. Some Township residents filed a validity challenge to the ordinance exempting the cell tower from the Township's Zoning Code. The Township Zoning Hearing Board dismissed the challenge as untimely, which dismissal was affirmed on appeal. McCullough, 05 -500 January 5, 2005 Page 2 The same Township residents also filed a lawsuit against the Township, Crown, and the individuals who owned Crown at the time. No individuals affiliated with the Township -- commissioners or otherwise- -were named in the suit. The only relief that the plaintiffs requested was a declaration of the transaction between the Township and Crown as null and void. You state that such a declaration would lead to the dismantling of the cell tower. All counts of the complaint were dismissed by the Court of Common Pleas. However, the Commonwealth Court of Pennsylvania subsequently reversed the decisions of the lower court and reinstated all of the causes of action set forth in the complaint. The Supreme Court denied allocatur, and the suit was remanded for further proceedings before the Court of Common Pleas, where it is currently pending. Two current members of the Board were serving on the Board when it authorized /executed the long -term ground lease with the cell tower owner and passed the ordinance exempting the cell tower from the Township's Zoning Code. One such member voted in favor of the ordinance authorizing the transaction, while the other such member was absent and did not participate in the vote. A third member of the Board has disclosed that, prior to his election, he made a contribution to a "litigation fund" to assist in the payment of plaintiffs' counsel fees in the litigation against the Township and Crown. You state that since this third Board member's election, he has advised the Board that he has not participated in any respect with the plaintiffs' pursuit of their complaint. He has also advised you that he intends to inform the Board that he will not accept any recoupment of his contribution. You indicate that while no individual affiliated with the Township is a party to the pending litigation, there is a possibility that Crown or other third persons could bring a future action against current or former Board members. Based upon the foregoing facts, you pose the following specific inquiries: 1 If the Court of Common Pleas would refer the pending matter to the Township for consideration of land use approval, whether all present Board members could participate in the Board's hearing and vote on any related issues; 2. If the Court of Common Pleas would invalidate the current tower lease with Crown, such that the potential would exist for bidding out a cellular communications tower lease with Crown potentially being one of the bidders, whether all present Board members could participate in any discussion related to: (a) whether to bid out a cellular communications tower lease; and (b) the award of any bid for such lease; and 3. Whether all present Board members could participate in any discussions and /or votes related to the pending litigation, including strategy and settlement, where most such matters would be handled in non - public executive sessions but any final settlement would be handled at a public meeting. 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 that the requestor has submitted. In issuing the advisory based upon the facts that the requestor 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 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. The Township Commissioners are public officials subject to the provisions of the Ethics Act. Sections 1103(a) and 1103(j) of the Ethics Act provide: McCullough, 05 -500 January 5, 2005 Page 3 § 1103. Restricted Activities (a) Conflict of interest. —No public official or public employee shall engage in conduct that constitutes a conflict of interest. (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 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), (j). The following terms pertaining to conflicts of interest under the Ethics Act are defined 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. McCullough, 05 -500 January 5, 2005 Page 4 65 Pa. C. S. § 1102. 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. In each instance of a conflict, Section 1103(j) requires the public official /public 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 the instant matter, based upon the submitted facts, there is no basis for concluding that any of the Township commissioners on whose behalf you have inquired would have a conflict of interest under the Ethics Act in matters pertaining to the cell tower or related pending litigation. This is because conflicts of interest under the Ethics Act must be based upon the use of the authority of the public position or confidential information received by being in the public position for a prohibited private pecuniary (financial ) benefit. Neither a prior vote in a matter nor even alleged bias on the part of a public official would be sufficient, in itself, to satisfy the aforesaid requisite element of a prohibited private pecuniary benefit. Two of the current Township Commissioners were on the Board when it previously authorized /executed the long-term ground lease with the cell tower owner and exempted the cell tower from the Township's zoning code. One of these commissioners voted in favor of the ordinance authorizing the long -term ground lease with the cell tower owner, while the other was absent and did not participate in the vote. However, based upon the submitted facts, which reveal no basis for a prohibited private pecuniary benefit as to either of these Township Commissioners, you are advised that neither of these Township Commissioners would have a conflict of interest under Section 1103(a) of the Ethics Act in matters involving the cell tower or related pending litigation. This conclusion is conditioned upon the assumption as to each of these Commissioners that neither the Commissioner, any member of his immediate family, nor any business with which the Commissioner or a member of his immediate family is associated would be financially impacted by such matters. With regard to the third Township Commissioner who, prior to being elected to office, made a contribution to a "litigation fund" to assist in the payment of plaintiffs' counsel fees in the litigation against the Township and Crown, you are advised as follows. Conditioned upon the assumptions that: (1) since taking office, this third Township Commissioner has had no involvement with the plaintiffs' pursuit of their complaint; (2) this Commissioner will not accept any recoupment of his prior contribution to the aforesaid litigation fund; and (3) there is no other basis for a conflict of interest under Section 1103(a) of the Ethics Act as to this Commissioner, the third Township Commissioner also would not have a conflict of interest under Section 1103(a) of the Ethics Act in matters involving the cell tower or related pending litigation. See, DeLano, Opinion 88 -008. As to each of the remaining four Township Commissioners, there simply is no basis in the submitted facts that would lead to the conclusion that any one of them would have a conflict of interest pursuant to Section 1103(a) of the Ethics Act in matters involving the cell tower or related pending litigation. In the absence of any basis for a conflict of interest under the Ethics Act, the necessary conclusion is that Section 1103(a) of the Ethics Act would not prohibit any of McCullough, 05 -500 January 5, 2005 Page 5 the seven Township Commissioners from participating in matters involving the cell tower or related pending litigation. Based upon the above, there is no need to further address your specific inquiries. As for any future litigation, further advice may be sought from the Commission as needed if circumstances change. 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 case law pertaining to bias. Conclusion: The Members of the Board of Commissioners ( "Board ") of the Township of Upper St. Clair ( "Township ") are all public officials subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. None of the Township Commissioners would have a conflict of interest under Section 1103(a) of the Ethics Act in matters involving the cellular telephone communications tower currently located within the Township park conditioned upon the assumption that neither the Commissioners, members of their immediate families, nor any businesses with which the Commissioners or members of their immediate families are associated would be financially impacted by such matters. 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