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HomeMy WebLinkAbout05-579 KotchFrank Kotch 5305 Drawbridge Court Limerick, PA 19468 Dear Mr. Kotch: ADVICE OF COUNSEL October 13, 2005 Based upon the foregoing facts, you pose the following specific inquiries: 05 -579 Re: Conflict; Public Official /Employee; Simultaneous Service; Member of Township Planning Commission and Township Supervisor; Five - Member Board. This responds to your letter of September 9, 2005, by which you requested 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 supervisor may also serve as a member of a township planning commission, and if such is permissible, whether he may review a land development application as a planning commission member and subsequently rule on that same application as a township supervisor. Facts: You are the Vice - President of the Limerick Township Planning Commission ( "Planning Commission "), having served on the Planning Commission for six years. You seek an advisory from the State Ethics Commission based upon the following submitted facts. The Planning Commission consists of seven citizens appointed by the Limerick Township Board of Supervisors. You state that your duties as a Planning Commission member are delineated in the Pennsylvania Municipalities Planning Code, Act 247 of 1968, as amended, ( "MPC ") which refers to a planning commission as a voluntary agency, the members of which serve in an advisory capacity to the governing body. In the spring Primary Election, you won the Republican and Democratic endorsements to seek election as a Supervisor for Limerick Township ( "Township "). You state that you are running in the November General Election unopposed. 1. Whether you may continue to serve on the Planning Commission until you take the Oath of Office as a Township Supervisor on January 2, 2006; Kotch, 05 -579 October 13, 2005 Page 2 2. If you may continue to serve on the Planning Commission, whether a conflict would exist if you would review a land development application as a member of the Planning Commission from now until January 2, 2006, and then rule on the same application as a Township Supervisor, after January 2, 2006; and 3. Whether the above two scenarios would change if there were two members of the Planning Commission, another member and yourself, with the same set of circumstances. 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. If you would win the election for Supervisor of Limerick Township ( "Township "), upon assuming office, you would be a "public official" as that term is defined in the Ethics Act, and hence you 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 "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. 65 Pa.C.S. § 1102. "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. Kotch, 05 -579 October 13, 2005 Page 3 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 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. Kotch, 05 -579 October 13, 2005 Page 4 In response to your first question, you may continue to serve on the Planning Commission even after you take the Oath of Office as a Township Supervisor on January 2, 2006. In this regard, the Second Class Township Code provides: 65403. Supervisors (b) Except as otherwise provided in this act, no supervisor shall at the same time hold any other elective or appointive township office or position. Nothing in this subsection shall prohibit a supervisor from being a member of a township planning commission created under the act of July 31, 1968 P.L. 805, No. 247), known as the "Pennsylvania Municipalities Planning Code." 53 P.S. §65403(b) (Emphasis added). Thus, it is clear that under the Second Class Township Code, you may simultaneously serve as a member of a planning commission created under the MPC and a township supervisor. In response to your second question, you would not have a conflict of interest under Section 1103(a) of the Ethics Act in ruling on a land development application that you had previously reviewed as a Planning Commission member absent the element of a private pecuniary benefit to yourself, a member or your immediate family, or a business with which you or a member of your immediate family is associated. In response to your third question, it is administratively noted that the Limerick Township Board of Supervisors consists of five members. The only exception that enables a member of a five - member board to vote despite a conflict of interest requires as a prerequisite condition that: (1) the board 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 disclose their conflicts as required by Section 1103(j). 65 Pa.C.S. § 1103(j); Pavlovic, Opinion 02 -005. That prerequisite condition is not met when only one or two members of the five - member board have conflicts, or when such members abstain for reasons other than having a conflict of interest under the Ethics Act. Pavlovic, supra. 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. Conclusion: If you would win the election for Supervisor of Limerick Township ( "Township "), upon assuming office, you would be a "public official" as that term is defined in the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., and hence you would be subject to the provisions of that Act. You may simultaneously serve as a member of the Limerick Township Planning Commission ( "Planning Commission ") and a Township Supervisor. You would not have a conflict of interest under Section 1103(a) of the Ethics Act in ruling on a land development application that you had previously reviewed as a Planning Commission member absent the element of a private pecuniary benefit to yourself, a member or your immediate family, or a business with which you or a member of your immediate family is associated. On a five - member board, a supervisor with a conflict may vote only where: (1) the board is 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 disclose their conflicts as Kotch, 05 -579 October 13, 2005 Page 5 required by 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 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