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HomeMy WebLinkAbout26-522 Hudock 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 304 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL April 7, 2026 To the Requester: Daniel C. Hudock, Esquire 26-522 Dear Mr. Hudock: This responds to your letter dated March 13, 2026, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the issue presented below: Issue: Whether, pursuant to Section 1103(a) of thePublic Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), either of two individuals serving as Supervisors for Ligonier Township (“Township”), one of whom (“Individual One”) is a Trustee of the Ligonier Township Volunteer Fire Department No. 1 (“Volunteer Fire Department”) and the Secretary of the Ligonier Township Volunteer Fire Department No. 1 Relief Association (“Relief Association”) and one of whom (“Individual Two”) has a brother who is the Fire Chief of the Volunteer Fire Department and the Treasurer of the Relief Association, would have a conflict of interest with regard to voting on an application that the Volunteer Fire Department and the Relief Association filed with the Township to have properties that they own rezoned from “A-1”/“Agricultural” to “C-1”/“Neighborhood Commercial.” Brief Answer: YES. Individual One and Individual Two each would have a conflict of interest under Section 1103(a) of the Ethics Act in matters before the Township Board of Supervisors that would financially impact him, a member of his immediate family, or a business with which he or a member of his immediate family is associated. The Volunteer Fire Department and the Relief Association are businesses with which Individual One is associated in his capacities as a Trustee and the Secretary, respectively. The Volunteer Fire Department and the Relief Association are businesses with which Individual Two’s brother, an immediate family member, is associated in his capacities as the Fire Chief and Hudock, 26-522 April 7, 2026 Page 2 the Treasurer, respectively. Accordingly, Individual One and Individual Two each would have a conflict of interest with regard to voting on the application to have properties owned by the Volunteer Fire Department and the Relief Association rezoned from “A- 1”/“Agricultural” to “C-1”/“Neighborhood Commercial,” and they would be required to abstain from voting on the application because under the submitted facts, neither of the two statutory voting conflict exceptions of Section 1103(j) of the Ethics Act would be applicable. Facts: You have been authorized by John Beaufort (“Mr. Beaufort”) and Paul Knupp (“Mr. Knupp”) to request an advisory from the Commission on their behalf. You have submitted facts that may be fairly summarized as follows. The Township is a Second Class Township located in Westmoreland County, Pennsylvania. Mr. Beaufort and Mr. Knupp are Members of the Township Board of Supervisors (“Board”), which consists of five Members. Pursuant to the Second Class Township Code, a quorum of the Board is three Township Supervisors (“Supervisors”), and an affirmative vote of a majority of the entire Board at a public meeting is necessary in order to transact business. See, 53 P.S.§ 65603. The Volunteer Fire Department and the Relief Association are Pennsylvania non-profit corporations, hereinafter collectively referred to as “the Fire Entities,” that provide fire protection services for the Township and surrounding areas. Mr. Beaufort and Mr. Knupp are active volunteer firefighters with the Fire Entities. Mr. Beaufort’s brother is the Fire Chief of the Volunteer Fire Department and the Treasurer of the Relief Association. Pursuant to the Bylaws of the Volunteer Fire Department, the Fire Chief is an officer of the Volunteer Fire Department. Mr. Knupp is a Trustee of the Volunteer Fire Department and the Secretary of the Relief Association. The Fire Entities own three contiguous parcels of property (“the Properties”) in the Waterford section of the Township that are utilized for a fire station, social hall, and recreational facilities. The Properties are currently zoned as “A-1” or “Agricultural.” The Properties are close to a heavily traveled state road and total approximately 25 acres in size. The Fire Entities recently filed an application with the Township to have the Properties rezoned as “C-1” or “Neighborhood Commercial.” Various commercial uses of the Properties may be undertaken in a C-1 zoned district that may not be undertaken in an A-1 zoned district. In addition, property with a C-1 zoning classification that is close to a heavily traveled state road may have a greater value than property with an A-1 zoning classification. Rezoning requires that the Township Zoning Ordinance and Map be amended. Rezoning is a legislative function within the discretion of the Supervisors, and they have no obligation to act at all on the Fire Entities’ application to have the Properties rezoned. At the Board’s public meeting held on March 10, 2026, Mr. Beaufort and Mr. Knupp abstained from a 3-0 vote of the Board that approved holding a public hearing as the next step in the Township’s consideration of the Fire Entities’ request for a zoning change for the Properties. Hudock, 26-522 April 7, 2026 Page 3 A public hearing on the Fire Entities’ request is scheduled to be held on April 14, 2026, and it is likely that the Board will vote on the request at the Board’s public meeting scheduled to be held immediately after the public hearing. Based upon the above submitted facts, you pose the following questions: (1) Whether Mr. Beaufort would have a conflict of interest with regard to voting on any matter concerning the rezoning of the Properties; (2) Whether Mr. Knupp would have a conflict of interest with regard to voting on any matter concerning the rezoning of the Properties; (3) If either Mr. Beaufort or Mr. Knupp would have a conflict of interest, whether either of them may participate in a public hearing on the matter or offer input to the other Supervisors concerning the rezoning of the Properties; (4) If either Mr. Beaufort or Mr. Knupp would have a conflict of interest and the remaining Supervisors would not be able to vote unanimously to grant or deny the Fire Entities’ rezoning request, thereby not meeting the majority or three- Supervisor requirement for passage or denial of any motion as required by the Second Class Township Code, whether either Mr. Beaufort or Mr. Knupp would be permitted to vote pursuant to a voting conflict exception set forth in Section 1103(j) of the Ethics Act; (5) If the meeting of the Board would be held with at least three or four but not all five Supervisors present, such that a quorum for the meeting would exist, and Mr. Beaufort and Mr. Knupp would be present and count toward the quorum, and either Mr. Beaufort or Mr. Knupp would have a conflict of interest, whether either Mr. Beaufort or Mr. Knupp would be permitted to vote pursuant to Section 1103(j) of the Ethics Act on the basis that a legally required vote of approval would be unattainable on the rezoning matter by just the one or two non-conflicted Supervisors present; (6) If either Mr. Beaufort or Mr. Knupp would have a conflict of interest and the three non-conflicted Supervisors would be present at the meeting, and one of the three non-conflicted Supervisors would decide, for whatever reason, to announce at the meeting that he or she will not vote at all on the matter, whether either Mr. Beaufort or Mr. Knupp would be permitted to vote pursuant to Section 1103(j) of the Ethics Act; and (7) Whether Mr. Beaufort or Mr. Knupp would have a conflict of interest with regard to voting to rezone from “A-1” to “C-1” an area of the Township that includes not only the Properties but also other properties not owned by the Fire Entities. Discussion: Hudock, 26-522 April 7, 2026 Page 4 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 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 material facts. Sections 1103(a)and 1103(j) of the Ethics Act provide: § 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), 1103(j). The following terms related to Section 1103(a) are defined in the Ethics Act as follows: § 1102. Definitions Hudock, 26-522 April 7, 2026 Page 5 “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. “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. Subject to the statutory exclusions to the Ethics Act’s definition of the term “conflict” or “conflict of interest,” 65 Pa.C.S. § 1102, a public official/public employee is prohibited from using the authority of public office or confidential information received by holding such a public position for the private pecuniary (financial) 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 definition of the term “business” as set forth in the Ethics Act includes a non- profit organization. Rendell v. State Ethics Commission, 603 Pa. 292, 983 A.2d 708 (2009). The use of authority of office is not limited merely to voting but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. In each instance of a conflict of interest, a public official/public employee would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be Hudock, 26-522 April 7, 2026 Page 6 applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. A conflict of interest would not exist to the extent the “class/subclass” exclusion set forth within the Ethics Act’s definition of the term "conflict" or "conflict of interest" would be applicable. 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; 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 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. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As Supervisors, Mr. Beaufort and Mr.Knupp are public officials subject to the provisions of the Ethics Act. Mr. Beaufort and Mr. Knupp each would generally have a conflict of interest under Section 1103(a) of the Ethics Act in matters that would financially impact him, a member of his immediate family, or a business with which he or a member of his immediate family is associated. In response to your first three questions, you are advised as follows. With respect to Mr. Beaufort, his brother is a member of his “immediate family” as that term is defined in the Ethics Act. The Fire Entities are businesses with which Mr. Beaufort’s brother is associated in his capacities as the Fire Chief of the Volunteer Fire Department and the Treasurer of the Relief Association. With respect to Mr. Knupp, the Fire Entities are businesses with which he is associated in his capacities as a Trustee of the Volunteer Fire Department and the Secretary of the Relief Association. Mr. Beaufort and Mr. Knupp each would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in Board actions pertaining to the Fire Entities’ application for rezoning of the Properties from “A-1” to “C-1.” Section 1103(a) would prohibit both Mr. Beaufort and Mr. Knupp, in their capacities as Supervisors, from participating in the Board’s public hearing on the rezoning application or offering input to the other Supervisors on the rezoning application. However, because Section 1103(a) applies to restrict Mr. Beaufort and Mr. Knupp in their capacities as Supervisors rather than in their private capacities, Section 1103(a) would not prohibit them from participating in the Board’s public hearing on the rezoning Hudock, 26-522 April 7, 2026 Page 7 application or offering input to the other Supervisors on the rezoning application strictly in Mr. Beaufort’s and Mr. Knupp’s capacities as officers of the Fire Entities. In response to your fourth, fifth, and sixth questions regarding the potential applicability of the statutory voting conflict exceptions of Section 1103(j) of the Ethics Act to the instant matter, you are advised as follows. Subject to two narrowly-construed voting conflict exceptions, in each instance of a conflict of interest, Section 1103(j) of the Ethics Act requires the public official/public employee to abstain from voting and to publicly disclose the abstention and the reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes. One of the two voting conflict exceptions of Section 1103(j) is not applicable in this matter because it applies only to three-member governing bodies of political subdivisions. The only voting conflict exception of Section 1103(j) that enables a member of a five- member body such as the Board to vote despite a conflict of interest requires that the following conditions be met: (1) the body must be unable to take any action on the matter before it because the number of members required to abstain from voting under the provisions of the Ethics Act makes the majority or other legally required vote of approval unattainable; and (2) prior to voting, such members with conflicts under the Ethics Act must disclose their conflicts as required by Section 1103(j). See¸ Pavlovic, Opinion 02-005. When both of these conditions are met, such that the exception is applicable, the exception allows for voting only; it does not permit other forms of participation, such as discussing the matter that is the subject of the vote. See, Whitlock, Opinion 04-015. The conditions of the exception are not met when members have conflicts under some law other than the Ethics Act or abstain for reasons other than having a conflict under the Ethics Act. Pavlovic, supra. Because the Board is a five-Member body, at least three Supervisors would need to have conflicts of interest under the Ethics Act with regard to voting on the Fire Entities’ rezoning applicationin order to make the majority or other legally required vote “unattainable” at a Board meeting for purposes of the applicability of the voting conflict exception. See¸ Klutzaritz¸Order 1078 at 6; Pavlovic, supra. Where three of the five Supervisors would not have a conflict, the majority or legally required vote is attainable; the possibilities that the three non-conflicted Supervisorsmight not be able to reach a unanimous vote on the rezoning application, that one or two of the three non-conflicted Supervisors might not be present at the Board meeting such that at least one of the two conflicted Supervisors (Mr. Beaufort and Mr. Knupp) would be necessary to reach a quorum at the meeting, or that one of the three non-conflicted Supervisors might decide that he or she will not vote at all on the rezoning application, would not make the majority or other legally required vote of approval unattainablefor purposes of the application of the voting conflict exception. Accordingly, because the submitted facts do not indicate that at least one Supervisor in addition to Mr. Beaufort and Mr. Knupp would have a conflict of interest with regard to voting on the Fire Entities’ application for rezoning of the Properties, the first condition of the voting conflict exception would not be met, and Mr. Beaufort and Mr. Knupp would be required to abstain from voting on the application. Hudock,26-522 April 7, 2026 Page 8 Turning to your seventh question, you are advised that Mr. Beaufort and Mr. Knupp each would have a conflict of interest with regard to voting to rezone from “A-1” to “C-1” an area of the Township that includes not only the Properties but also other properties not owned by the Fire Entities unless the class/subclass exclusion to the definition of “conflict” or “conflict of interest” wouldbe applicableas to any impact upon the Properties. In order for the class/subclass exclusion to be applicable, the Properties would have to be part of an appropriate subclass that would include at least one other property: (1) that would be similarly situated as a result of relevant shared characteristics; and (2) that would be reasonably affected to the same degree by the rezoning of that area of the Township. The submitted facts do not enable a determination as to whether the class/subclass exclusion would be applicable in this respect. Lastly, the propriety of the proposed conduct has only been addressed under 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 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. 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 receivedat 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. Respectfully, Bridget K. Guilfoyle Chief Counsel