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HomeMy WebLinkAbout05-612 CONFIDENTIALADVICE OF COUNSEL December 30, 2005 05 -612 Re: Conflict; Public Official /Employee; Township Supervisor; Class /Subclass Exclusion; Three - Member Board. This responds to your letter of November 23, 2005, by which you requested 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 two township supervisors on a three- member board with regard to participating in and voting on a settlement agreement with a D that wishes to expand its operations onto land located in the township when: (1) the settlement agreement would require the D owner to address E impacts within an expanded linear feet distance from the D -owned land; and (2) both supervisors own real property that is within the designated radius for E protection. Facts: You are the Chair of the Board of Supervisors ( "Board ") of Township A, C ounty B. You seek an advisory on your own behalf and on behalf of C, a fellow Township Supervisor. You have submitted facts that may be fairly summarized as follows. A D that is operating in the Township has sought approval to expand operations onto additional land that it owns. However, a challenge to the pre - existing nonconforming use was brought before the Zoning Hearing Board, which ultimately ruled that the D could expand onto part of its total acreage due to zoning ordinances that were in place at the time the D purchased those parcels. The Board is now in the process of negotiating a settlement agreement that would permit D activities to expand onto portions of the land that were excluded by the Zoning Hearing Board's ruling. As part of the negotiation process, the Board is seeking additional assurances from the D operator that the D will address E impacts within an expanded linear feet distance from the D -owned land. Current F agency regulations require a D operator to address E impacts within [number] feet after it is confirmed that the D created the impacts to E availability; the Board is requesting the D operator to replace and address all E impacts within [number] feet. You and C along with [number] other private property owners live within the [number] foot radius. You ask whether you and C may vote on the entire settlement Confidential Advice, 05 -612 December 30, 2005 Page 2 agreement with the D operator. You state that neither you nor C would receive anything above and beyond that which other parcel owners would receive in added E protection. However, you note that not all homeowners in the Township live within the [number] foot radius. You state that the settlement agreement will include many provisions with the added expanded area of E protection being just one in the final agreement. You further note that if you and C would be prohibited from voting on the settlement agreement, the Board would lack a quorum such that the matter could not be brought up for a vote. 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 Township Supervisors, you and C are public officials subject to the provisions of the Ethics 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. Confidential Advice, 05 -612 December 30, 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. As per Section 1103(a), you and C would generally have a conflict of interest in your public capacities in matters that would financially impact yourselves, immediate family members, or businesses with which you or members of your immediate families are associated. In each instance of a Confidential Advice, 05 -612 December 30, 2005 Page 4 conflict of interest, you and C would be required to abstain from participating and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Having established the above general principles, your specific inquiry shall now be addressed. In response to the question that you have posed, you and C would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in and voting on the settlement agreement with the D when you and C own real property that is within the [number] foot zone for E protection. If you and C would participate as to the settlement agreement, your actions would constitute uses of authority of office. The uses of authority of office would result in private pecuniary benefits consisting of assurances from the D that it will address E impacts within the [number] foot zone. Lastly, the pecuniary benefits would inure to you and C. Hence, all of the elements of a conflict would exist. However, the statutory definition of "conflict" or "conflict of interest" includes two exclusions, hereinafter referred to as the "de minimis" exclusion and the "class /subclass exclusion." The de minimis exclusion precludes a finding of a conflict of interest as to an action having a de minimis (insignificant) economic impact. Thus, when a matter that would otherwise constitute a conflict of interest under the Ethics Act would have an insignificant economic impact upon a public official, a member of his immediate family, or a business with which he or a member of his immediate family is associated, a conflict would not exist and Sections 1103(a) and 1103(j) of the Ethics Act would not restrict participation in such matter. See, Schweinsburq, Order 900. In that the inquiry involves a settlement agreement that would require the D to address E impacts within [number] feet, and you and C both reside within the [number] foot radius, any action taken by you or C would not have a de minimis economic impact, and therefore, this exclusion would not apply. 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" as the other members of the class /subclass. 65 Pa.C.S. § 1102; see, Graham, Opinion 95 -002 (citing Van Rensler, Opinion 90 -017); 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, Opinion 02 -003. In considering the first criterion, it would appear that the correct identification of the class /subclass is all property owners in the Township whose property is within the [number] foot radius. Regarding the second criteria concerning being affected to the same degree as the other members of the class /subclass, you have not presented facts to establish that you and C would be affected to the same degree as all the other members of the class /subclass. Notwithstanding the absence of such additional facts, it would seem impossible to reach such a conclusion in light of the many variables that exist in terms of Es. To illustrate, it is quite possible that D operations might impact the Es in varying degrees depending upon the G, H, I, J, and K, such that one property owner might be Confidential Advice, 05 -612 December 30, 2005 Page 5 spared greater out of pocket expenses than another. Thus, a proper analysis of the applicability of the class /subclass exclusion in any given instance requires a careful examination of the circumstances, on a case -by -case basis. Id. The second criterion may be difficult to establish in matters pertaining to real estate. Sometimes a determination as to whether a public official would be affected to the same degree as other property owners in a proffered class /subclass may only be made through a comparison of real estate appraisals of the affected properties. See, e.q., Laser, Opinion 93 -002 (Concluding that in the absence of appraisals, a determination could not be made as to whether the value of a township supervisor's property would be affected by a proposed development to the same degree as that of all other property owners in the proffered class /subclass). When a factual insufficiency exists as to the impact of a proposed action upon the property values of the members of the class /subclass, an advisory must necessarily be limited to providing general guidance. You are advised that under the submitted facts, you and C would have a conflict of interest in participating in and voting on the settlement agreement with the D unless the class /subclass exclusion would be applicable. Because it cannot be factually determined that the D expansion would impact all the property owners whose property is within the [number] foot radius to the same degree, it cannot be established that the class /subclass exclusion would apply. If the class /subclass exclusion would not apply, neither you nor C would be permitted to make a motion as to the matter. However, the remaining Supervisor who does not have a conflict, may choose to make a motion. Because the non - conflicted Supervisor may not second his /her own motion, and it would be otherwise impossible for a second to occur, either you or C may second the motion. However, neither of you may discuss or advocate as to the motion following the second. You and C may only vote on the motion. Confidential Opinion, 04 -003. Regarding the issue on voting on a seconded the motion, given that the Board of Supervisors would be unable to take official action because the majority or other legally required vote would be unattainable due to the fact that you and C have a conflict of interest, you and C would be permitted to vote if you would make the proper disclosures as required by Section 11030) of the Ethics Act. See, Pavlovic, Opinion 02 -005. It is noted, however, that Section 1103(j) does not give conflicted officials the authority to otherwise participate, as for example, discussing or advocating as to the issue. Id. 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 Supervisors for Township A, County B, you and C are public officials subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. You and C would have a conflict of interest in participating in and voting on a settlement agreement with the D when you and C own real property that is within the [number] foot radius. The "de minimis" exclusion would not apply. Due to a factual insufficiency, it has not been established that the class /subclass exclusion would apply. If the class /subclass exclusion would not apply, neither you nor C would be permitted to make a motion as to the matter. However, the remaining Supervisor who does not have a conflict, may choose to make a motion. Because the non - conflicted Supervisor may not second his /her own motion, and it would be otherwise impossible for a second to occur, either you or C may second the motion. However, neither of you may discuss or advocate as to the motion following the second. You and C may only vote on the motion. Given that the Board of Supervisors would be unable to take official action because the majority or other legally required vote would be unattainable due to the fact that you and C have a conflict of interest, you and C would be permitted to vote if Confidential Advice, 05 -612 December 30, 2005 Page 6 you would make the proper disclosures as required by Section 11030) of the Ethics Act. It is noted, however, that Section 1103(j) does not give conflicted officials the authority to otherwise participate, as for example, discussing or advocating as to the issue. 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