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HomeMy WebLinkAbout26-563 Fraind 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 September 14, 2026 To the Requester: Steven Fraind 26-563 Dear Mr. Fraind: This responds to your emails received August 13, 2026, and August 26, 2026, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the issue presented below: Issue: Whether, as a Supervisor for Salem Township, you would have a conflict of interest under Section 1103(a) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), with regard to voting on a developer’s request for an amendment to the Salem Township Zoning Map that would expand the Special Data Center Overlay zoning district to include additional properties, where: (1) your mother resides on a property that she transferred to you several years ago for estate planning purposes; (2) the property that was transferred to you is not one of the additional properties that would be included in the proposed expanded Special Data Center Overlay zoning district; and (3) if the proposed amendment to the Salem Township Zoning Map would be approved, the property that was transferred to you and other properties in the neighborhood may be purchased by the developer. Brief Answer: YES. Because there is an actual or reasonable expectation that the developer may purchase the property that was transferred to you by your mother if the developer’s request for an amendment to the Salem Township Zoning Map to expand the Special Data Center Overlay zoning district would be approved, you would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting on the proposed amendment to the Salem Township Zoning Map. Facts: Fraind, 26-563 September 14, 2026 Page 2 You request an advisory from the Commission based upon the following submitted facts. You are a Supervisor for Salem Township (“Township”). A developer (“the Developer”) has requested an amendment to the Salem Township Zoning Map (“Township Zoning Map”) that would expand the Special Data Center Overlay zoning district to include additional properties. Your mother resides on a property in the Township that she transferred to you several years ago for estate planning purposes. Although the property that was transferred to you is not one of the additional properties that would be included in the proposed expanded Special Data Center Overlay zoning district, the property and other properties in the neighborhood may be purchased by the Developer if its request for an amendment to the Township Zoning Map would be approved. Based upon the above submitted facts, you ask whether you would have a conflict of interest with regard to voting on the proposed amendment to the Township Zoning Map that would expand the Special Data Center Overlay zoning district, and if so, whether you would be permitted to take action to break a tie vote of the other two Township Supervisors on the proposed amendment. Discussion: 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 Fraind, 26-563 September 14, 2026 Page 3 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, whereone 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 “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. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Act’s definition of the term “conflict” or “conflict of interest” (i.e., the “de minimis exclusion” and the “class/subclass exclusion”), 65 Pa.C.S. § 1102, a public official/public employee is prohibited from using the authority of public Fraind, 26-563 September 14, 2026 Page 4 office or confidential information received by holding such a public position for the private pecuniary(financial)benefit of the public official/public employeehimself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. 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 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. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As a Township Supervisor, you are a public official subject to the provisions of the Ethics Act. Your mother is a member of your “immediate family” as that term is defined in the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, you generally would have a conflict of interest in matters before the Township Board of Supervisors that would financially impact you, a member of your immediate family such as your mother, or a business with which you or a member of your immediate family is associated. Based upon the submitted fact that there is an actual or reasonable expectation that the Developer may purchase the property that was transferred to you by your mother if the Developer’s request for an amendment to the Township Zoning Map to expand the Special Data Center Overlay zoning district would be approved, you would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting on the proposed amendment to the Township Zoning Map. You would be required to abstain from voting on the proposed amendment to the Township Zoning Map unless one of the voting conflict exceptions of Section 1103(j) of the Ethics Act would be applicable. The exception for breaking a tie vote despite a conflict of interest is available exclusively to members of three-member governing bodies of political subdivisions who first abstain and disclose their conflicts as required by Section 1103(j) of the Ethics Act. See, e.g., Pavlovic, Opinion 02-005. Because the Township Board of Supervisors is a three-Member governing body of a political subdivision, Section 1103(j) would permit you to vote to break a tie if the other two Township Supervisors would cast opposing votes on the Developer’s request for an amendment to the Township Zoning Map, provided thatyou would initially: (1) abstain from the vote; and (2) fully satisfy the disclosure requirements of Section 1103(j). However, in voting to break a tie vote, you could not otherwise use the authority of office, such as by advocating your view, in the matter. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Fraind,26-563 September 14, 2026 Page 5 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