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HomeMy WebLinkAbout05-600 CONFIDENTIALADVICE OF COUNSEL December 2, 2005 05 -600 Re: Conflict; Public Official; Township; Supervisor; Immediate Family; Subdivision Plans Pending Before Township. This responds to your letter of November 1, 2005, by which you requested a confidential 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 township supervisor with regard to participating in the review of a subdivision plan that may require the installation of a pressurized sewer line that will run alongside farmland that is owned by the supervisor's father. Facts: As counsel for A Township, B County, you seek an advisory on behalf of Township Supervisor. You have submitted facts that may be fairly summarized as follows. The Township has been experiencing considerable development growth over the past fifteen years. There are several developments in the Township in various stages of subdivision approval. The developments consist of the followin subdivisions: (1) the D Subdivision, consisting of approximately [number] units; 2) the E Subdivision, consisting of approximately [[number] units; (3) the F Su division, consisting of approximately [number] units; and (4) the G Subdivision, consisting of approximately [number] units. C's father owns a farm located near or adjacent to the four subdivisions named above. A portion of the farm is located in the H Zoning District, where the minimum lot size is [number] square feet irrespective of whether there is onsite water and sewer or public water and sewer. This property is owned solely by C's father. The other portion of the farm is located in the 1 Zoning District, which requires a [number] square feet minimum lot size irrespective of the availability of public water and sewer. This property is owned by C's father and uncle. Confidential Advice, 05 -600 December 2, 2005 Page 2 As part of the approval process for the four subdivisions, sanitary sewer lines and pump stations will be constructed by developers in accordance with Township direction and advice. The G Subdivision may require sanitary sewer in the nature of a high pressure line that will run alongside the portion of C's father's farm in the public roadway known as J Road. You state that it is unknown whether the proposed high pressure sanitary sewer line would be of any benefit by virtue of the ability to connect the farm, inasmuch as it is likely to be a pressurized line. You note that C's father's farm also fronts K Road and, if developed, could access public sewer at the intersection of K Road and L Road. You state that the G Subdivision will likely connect into the sewer line improvements constructed for the benefit of the other three subdivisions. The current sewer lines run approximately 100 yards from the portion of C's father's farm located in the H Zoning District, and front the portion of the farm located in the I Zoning District. You state that there are no plans by C's father to develop either portion of his farm pending before the Township. You further state that neither C's father nor his business partner contemplate any development plans for the portion of the farm located in the I Zoning District. The question you pose is whether C would have a conflict of interest under the Ethics Act in continuing to participate in the subdivision review and sanitary sewer related issues of the G Subdivision, given that it may require the approval of a pressurized sanitary sewer line alongside the portion of the farm located in the H Zoning District, which is owned by C's father. It is noted that you have submitted a map depicting the various subdivisions and the location of C's father's farm. 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. As a Supervisor for A Township, B County, C is a "public official" as that term is defined in the Ethics Act, and hence C is 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 Confidential Advice, 05 -600 December 2, 2005 Page 3 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. 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 Confidential Advice, 05 -600 December 2, 2005 Page 4 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. C's father is clearly a member of C's immediate family. Furthermore, the farming operation is a business with which C's father is associated. Pursuant to Section 1103(a) of the Ethics Act, C would be prohibited from using the authority of his public office or confidential information for a private pecuniary benefit of himself, his father or his father's farming operation. In each instance of a conflict, C would be required to abstain and to observe the disclosure requirements of Section 1103(j) of the Ethics Act. Based upon the submitted facts, it is unclear whether C's father or the farming operation would financially benefit if the Township would approve the G Subdivision, which may require the approval of a pressurized sanitary sewer line alongside the portion of the farm. If there would be a financial benefit to C's father or the farming operation, C would have a conflict, could not participate, and would be required to fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Having noted the possible conflict, you are advised that C could nevertheless participate as to the G Subdivision if the class /subclass exclusion in the above definition of "conflict or conflict of interest" would apply, i.e., if C's father would be a member of a class /subclass of landowners owning land adjacent to the G Subdivision and if such landowners would be affected to the same degree as the other members of the class /subclass. Under the facts that you have submitted, it is impossible to determine with certainty whether and to what extent C's father would be affected as compared to other landowners. In Laser, Opinion No. 93 -002, the Commission considered a township supervisor's argument that the class /subclass exclusion would apply in matters pertaining to a proposed development that was to be adjacent to the supervisor's Confidential Advice, 05 -600 December 2, 2005 Page 5 residential property as well as other properties. The Commission was given far more factual detail than you have provided. Yet, in the absence of evidence establishing: (1) the economic impact, if any, such matters would have as to the supervisor's property; and (2) whether the other members of the alleged class /subclass would be affected to the same degree as the supervisor, the Commission did not (and could not) reach a conclusion as to whether the class /subclass exclusion applied. The Commission noted that the same factual insufficiency similarly precluded a determination as to whether any alleged economic impact upon the supervisor would be de minimis. Likewise in the instant matter, there is a factual insufficiency, such that this Advice is necessarily limited to providing the above general guidance. 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 Second Class Township Code. Conclusion: As a Supervisor for A Township, B County, C is a "public official" subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. C's father is clearly a member of C's immediate family. Furthermore, the farming operation is a business with which C's father is associated. Pursuant to Section 1103(a) of the Ethics Act, C would be prohibited from using the authority of his public office or confidential information for a private pecuniary benefit of himself, his father or his father's farming operation. In each instance of a conflict, C would be required to abstain and to observe the disclosure requirements of Section 1103(j) of the Ethics Act. Based upon the submitted facts, it is unclear whether C's father or the farming operation would financially benefit if the Township would approve the G Subdivision, which may require the approval of a pressurized sanitary sewer line alongside the portion of the farm. If there would be a financial benefit to C's father or the farming operation, C would have a conflict, could not participate, and would be required to fully satisfy the disclosure requirements of Section 1103 (j) of the Ethics Act. C could nevertheless participate as to the G Subdivision if the class /subclass exclusion in the above definition of "conflict or conflict of interest" would apply. Under the facts that you have submitted, it is impossible to determine with certainty whether and to what extent C's father would be affected as compared to other landowners in the absence of real estate appraisals. Thus, this advice is general in nature because of the factual insufficiency as to such real estate appraisals. 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, Confidential Advice, 05 -600 December 2, 2005 Page 6 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