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Home My WebLink About05-528-CL Gold/LuceFred L. Gold 5408 Centennial Station Drive Warminster, PA 18974 Gentlemen: ADVICE OF COUNSEL June 1, 2005 Richard J. Luce, Jr. 660 Henry Avenue Warminster, PA 18974 05- 528 -CL Re: Conflict; Public Official /Employee; Supervisor; Township; Condominium; Resident; Road; Easement; Escrow; Association; School District; Business with which Associated; Clarification; Advice of Counsel, 05 -528 This responds to your letters of April 7 and 28, 2005, by which you requested clarification of Gold /Luce, Advice of Counsel, 05 -528. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., presents any prohibition or restrictions upon township supervisors as to participating in a matter before the township board to release funds from an escrow account for the purpose of repairing an access easement road that the condominium association has the responsibility for maintaining when two of the five members of the board of supervisors live in the condominium and one of the two is a member of the board of directors of the condominium association. Facts: By letter dated February 25, 2005, you initially sought an advisory from the tate Ethics Commission. In response to your request, Gold /Luce, Advice 05 -528 was issued to you on March 29, 2005, which Advice is incorporated herein by reference. On April 7, 2005, you submitted a request for clarification with respect to the following two issues: (1) whether it makes a difference that the parents of Supervisor Richard Luce ( "Luce "), rather than Luce himself, live at Centennial Station; and (2) whether the class /subclass exclusion to the definition of "conflict" or "conflict of interest' applies. With regard to the second issue, you provided the following additional information by way of your April 7" letter and a subsequent letter dated April 28, 2005. Centennial Station is comprised of three types of units: efficiency, two - bedroom and penthouse. There are currently forty (40) efficiency units, two hundred eighty -four (284) two - bedroom units, and seventy -five (75) penthouse units. Gold /Luce, 05- 528 -CL June 1, 2005 Page 2 The owners of the efficiency, two - bedroom and penthouse units pay 0.2139500 %, 0.2385100 %, and 0.2630600 %, respectively, of the common expenses of running the condominium. The percentages are based strictly upon the square footage of the units. You state that if the $60,000 would be released to repair the road, the Condominium Association would have that much less to pay to maintain the road and each individual unit owner would save a respective percentage of $60,000. The individual savings for the owners of the efficiency, two - bedroom and penthouse units would be as follows: $128.37, $143.10 and $157.04, respectively. Discussion: In that Gold /Luce, Advice of Counsel, 05 -528 is incorporated herein by reference, the quotations, citations and commentary as to the Ethics Act set forth within that Advice will not be repeated here. In response to your first question, you are advised that assuming the class /subclass exclusion and the de minimis exclusion would not apply, Luce would have a conflict of interest in participating in actions of the Township Board of Supervisors regarding the disposition and use of the escrow fund even though Luce's parents, rather than Luce, live at Centennial Station. Luce would have a conflict of interest because his use of the authority of office would result in a private pecuniary benefit of an immediate family member contrary to Section 1103(a) of the Ethics Act. In response to your second question, based upon the additional facts that you have submitted, the class /subclass exclusion would apply. Because Centennial Station is comprised of (40) efficiency units, two hundred eighty -four (284) two - bedroom units, and seventy -five (75) penthouse units, there would appear to be three separate subclasses of condominium owners -- a subclass consisting of efficiency unit owners, a subclass consisting of two - bedroom unit owners, and a subclass consisting of penthouse owners. Luce's parents belong to the subclass consisting of two - bedroom unit owners while Gold and his spouse belong to the subclass consisting of penthouse owners. If Luce would participate in the matter of the use of the $60,000 escrow fund, Luce's parents would be financially impacted to the same degree" as all of the other members of the two - bedroom unit subclass in that each member of that subclass would realize a savings of $143.10. If Gold would participate in the matter of the use of the $60,000 escrow fund, Gold and his spouse would be financially impacted to the same degree" as all of the other members of the penthouse owners subclass in that each member of that subclass would realize a savings of $157.04. Because Luce's parents and Gold and his spouse would be affected to the same degree as the other members of their respective subclass, the class /subclass exclusion would apply and Luce and Gold would not have a conflict of interest under Section 1103(a) of the Ethics Act as to participating in the matter of the use of the $60,000 escrow fund . Finally, given that the financial impact to Luce's parents ($143.10) and Gold and his spouse ($157.04), would be economically insignificant, the de minimis exclusion would also apply. Therefore, Luce and Gold would not have a conflict of interest under Section 1103(a) of the Ethics Act as to participating in the matter of the use of the $60,000 escrow fund . Conclusion: Gold /Luce, Advice of Counsel, 05 -528 is incorporated herein by reference. Assuming the class /subclass exclusion and the de minimis exclusion would not apply, Luce would have a conflict of interest in participating in actions of the Township Board of Supervisors regarding the disposition and use of the escrow fund because his use of the authority of office would result in a private pecuniary benefit of an immediate family member contrary to Section 1103(a) of the Ethics Act. For the reasons noted above, both the class /subclass exclusion and the de minimis exclusion would apply. Therefore, Luce and Gold would not have a conflict of interest under Gold /Luce, 05- 528 -CL June 1, 2005 Page 3 Section 1103(a) of the Ethics Act as to participating in the matter of the use of the $60,000 escrow fund. 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 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 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