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HomeMy WebLinkAbout05-527 RubensteinHerbert F. Rubenstein, Esquire 25 West Skippack Pike, Suite 107 Broad Axe, PA 19002 -5152 Dear Mr. Rubenstein: ADVICE OF COUNSEL March 28, 2005 05 -527 Re: Conflict; Public Official /Employee; Member of Governing Body of Municipality; Vote; Developer; Private Pecuniary Benefit. This responds to your letter of February 23, 2005, 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 a member of a governing body of a municipality ( "public official ") with regard to voting on matters involving two lots in the municipality that the public official previously sold to a developer in a transaction involving a rezoning request or with regard to voting in matters involving the developer or any projects that the developer would have in the municipality where: (1) the rezoning and sale have now been completed and the transaction has been closed; (2) the developer is no longer indebted to the public official who is completely divested of all interest in the two lots in question; and (3) neither the public official nor a member of the public official's immediate family has any other business relationship with the developer. Facts: On behalf of an unidentified member of a governing body (hereinafter referred to as the Public Official ") of an unidentified municipality ( "Municipality "), you seek an advisory from the State Ethics Commission. You have submitted facts, which may be fairly summarized as follows. The Public Official recently sold two lots in the Municipality to a land developer (the "Developer ") in a transaction involving a rezoning request. The rezoning and sale have now been completed and the transaction has been closed. However, the Developer will, in the future, require land development approvals as well as other approvals from the governing body of the Municipality during the build out of the project until its completion. Rubenstein, 05 -527 March 28, 2005 Page 2 You state that the Developer is no longer indebted to the Public Official who is completely divested of all interest in the two lots in question. You further state that neither the Public Official nor a member of the Public Official's immediate family has any other business relationship with the Developer. You maintain that the Public Official has not voted on any matters involving the two lots that she sold to the Developer, including the rezoning request, and has not voted on any matters involving the Developer or any of the Developer's projects in the Municipality. The question you pose is whether the Public Official would have a conflict of interest if she would resume voting on matters involving the two lots, as well as other projects that the Developer has in the Municipality. You opine that the Public Official would not have a conflict of interest because she no longer has any ownership interest in the two lots and has no other business relationship with the Developer; thus she would not stand to receive a private pecuniary benefit if she would vote on matters involving the lots or the Developer. 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. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint, which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent you have inquired as to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may, and shall be addressed. The Public Official on whose behalf you have requested this advisory is subject to the provisions of the Ethics 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 Rubenstein, 05 -527 March 28, 2005 Page 3 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. "Immediate family." A parent, spouse, child, brother or sister. "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 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 Rubenstein, 05 -527 March 28, 2005 Page 4 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. Thus, the Public Official would generally be prohibited from using the authority of her public office, or confidential information obtained by being in that position, for the private pecuniary benefit of herself. The specific inquiry that you have posed shall now be addressed. With regard to your first inquiry, you are advised as follows. The submitted facts reflect that: (1) the rezoning and sale have now been completed and the transaction has been closed; (2) the Developer is no longer indebted to the Public Official who is completely divested of all interest in the two lots in question; and (3) neither the Public Official nor a member of the Public Official's immediate family has any other business relationship with the Developer. Based upon the foregoing facts and conditioned upon the assumption that the Public Official has no reasonable and legitimate expectation that a business relationship will form with the Developer, the Public Official would not have a conflict of interest as to participating in matters involving the two lots that she sold to the Developer, or in matters involving the Developer or any projects that the Developer would have in the Municipality because there would be no use of the authority of office or confidential information by the Public Official for a prohibited private pecuniary benefit. Absent any actual or attempted private pecuniary benefit, the essential elements for a violation of Section 1103(a) would not exist. See, Amato, Opinion 89 -002; Miller, Opinion 89 -024; Kannebecker, Opinion 92 -010; Wider, rder 979 -2, affirmed Snyder v. State Ethics Commission, 686 A.2d 843 (Pa. Commw. 1996), alloc. den., No. 0029 M.D. Allocatur Docket 1997 (Pa. December 22, 1997). 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 respective municipal code. Rubenstein, 05 -527 March 28, 2005 Page 5 Conclusion: The Public Official on whose behalf you have requested this advisory is subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Based upon the facts that have been submitted and conditioned upon the assumption that the Public Official has no reasonable and legitimate expectation that a business relationship will form with the Developer, the Public Official would not have a conflict of interest as to participating in matters involving the two lots that she sold to the Developer, or in matters involving the Developer or any projects that the Developer would have in the Municipality because there would be no use of the authority of office or confidential information by the Public Official for a prohibited private pecuniary benefit. Absent any actual or attempted private pecuniary benefit, the essential elements for a violation of Section 1103(a) would not exist. 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