Loading...
HomeMy WebLinkAbout06-517 BarrettJohn A. Hiscott, Esquire 900 Scott Street Stroudsburg, PA 18360 -1820 Dear Mr. Hiscott: ADVICE OF COUNSEL February 17, 2006 06 -517 Re: Conflict; Public Official; Township Supervisor; Plaintiff in Litigation Against Developers and /or Township; Voting On Matters Pertaining to Developers or Lawsuits; Membership in Non - Profit Association That Gave Financial Support to Plaintiffs. This responds to your letter of January 17, 2006, 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 seg., presents any prohibition or restrictions upon: (1) a township supervisor who is a plaintiff in two lawsuits -- the first being a defamation suit filed against multiple defendants including a builder, and the second being a land use appeal filed against multiple defendants including the township, a developer and a land holdings partnership -- and who is a former member of and contributor to a non - profit association that gave financial support to plaintiffs in the land use appeal, with regard to participating in matters before the township involving the builder, the land use appeal, and property of the developer and the land holdings partnership; and (2) another township supervisor who is a current member of and contributor to the same non - profit association, with regard to participating in matters before the township involving the land use appeal, and property of the developer and the land holdings partnership. Facts: You are the Solicitor for Smithfield Township ( "Township "). It is administratively noted that the Township is a second -class township governed by a three - member board. You seek an advisory from the State Ethics Commission on behalf of Township Supervisors Brian E. Barrett ( "Barrett ") and Vincent Della Fera ( "Della Fera "), whose terms as Supervisors commenced January 1, 2006. You ask whether Barrett and Della Fera would have conflicts of interest in participating in certain matters before the Township based upon the following submitted facts. Barrett is a plaintiff in two lawsuits. The first lawsuit filed by Barrett is against Ralph Wunder, LTS Builders, LLC, Larry T. Simon, The Better Life for Smithfield Hiscott- Barrett /Fera, 06 -517 February 17, 2006 Page 2 Township Committee, and Gateway Abstract, Inc., and is docketed to No. 9583 Civil 2005. In this lawsuit, Barrett alleges that defamatory material was published about him and his spouse during his election as Supervisor. The second lawsuit filed by Barrett is captioned, "Pamela Barrett and Brian Barrett, her husband, Marianne Higgins and Michelle Chase vs. Smithfield Township Board of Supervisors vs. Shawnee Development, Inc. vs. C & M Shawnee Land Holdings, L.P," and is docketed to No. 3796 Civil 2005. In this lawsuit, which is pending in the Court of Common Pleas, plaintiffs seek a reversal of the Township's approval of a land development project by Shawnee Development, Inc. ( "Shawnee Development ") and C & M Shawnee Land Holdings, L.P., who have intervened in the action. The development project is across the street from the Barretts' residence. You state that the Shawnee Preservation Society, a non - profit association that was formed on June 6, 2005, to preserve the integrity and perpetuity of Shawnee on Delaware, PA and surrounding areas, gave financial support to plaintiffs in the second law suit. Barrett is a former member of the Shawnee Preservation Society, having contributed less than $400 to that association. Barrett resigned from the association on December 1, 2005. Della Fera is a current member of the Shawnee Preservation Society. Della Fera and his spouse have paid membership dues and made contributions to the association in the amount of approximately $500. Based upon the foregoing facts, you pose the following specific inquiries. 1. Whether it is appropriate for Barrett to abstain from voting on matters involving LTS Builders, LLC including, but not limited to, land development and subdivision projects; 2. If the answer to the first question is in the affirmative, whether it is appropriate for Barrett to vote under the rule of necessity in the event of a tie between the remaining supervisors or the lack of a majority of supervisors on a question by reason of one or two additional abstentions; 3. Whether it is appropriate for Barrett to abstain on voting on matters pertaining to the land use appeal docketed to No. 3796 Civil 2005 and the land division property of Shawnee Development, Inc. and C & M Shawnee Land Holdings, L.P.; 4. If the answer to the third question is in the affirmative, whether it is appropriate for Barrett to vote under the rule of necessity in the event of a tie between the remaining supervisors or the lack of a majority of supervisors on a question by reason of one or two additional abstentions; 5. Whether it is appropriate for Della Fera to abstain on voting on matters pertaining to the land use appeal docketed to No. 3796 Civil 2005 and the land division property of Shawnee Development, Inc. and C & M Shawnee Land Holdings, L.P.; and 6. If the answer to the third question is in the affirmative, whether it is appropriate for Della Fera to vote under the rule of necessity in the event of a tie between the remaining supervisors or the lack of a majority of supervisors on a question by reason of one or two additional abstentions. 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 Hiscott- Barrett /Fera, 06 -517 February 17, 2006 Page 3 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 Barrett and Della Fera are public officials as that term is defined in the Ethics Act, and hence they are 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. "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. "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. 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 Hiscott- Barrett /Fera, 06 -517 February 17, 2006 Page 4 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. Under Act 170 of 1978, the State Ethics Commission held that when a public official is involved in litigation, matters involving or affecting that litigant do present a conflict of interest for the public official. See, DeLano, Opinion 88 -008 (wherein the Commission held that a township supervisor had a conflict as to voting or participating in matters relating to a proposed landfill when the supervisor belonged to a citizens group that was in litigation involving an existing incinerator on the site of the proposed landfill, and when the incinerator was operated by the same owners of the landfill). Furthermore, the State Ethics Commission held that a public official has an inherent conflict of interest in matters pertaining to an entity when he is a litigant against that entity. See, Golla, Opinion 88 -004 (wherein the Commission held that a borough council member had a conflict of interest as to all matters involving a water authority when the council member in his private capacity was involved in litigation against the water authority). See, also, Perino, Advice 95 -503. These decisions would hold true under Act 9 of 1989 as codified by Act 93 of 1998. Perino, supra. Hiscott- Barrett /Fera, 06 -517 February 17, 2006 Page 5 In response to your first question, the facts that you have submitted do not indicate whether the action docketed to No. 9583 Civil 2005 is pending or final. Therefore, you are generally advised as follows. Assuming that the action is pending, given that Barrett is an adverse party in litigation against or involving LTS Builders, LLC, Barrett would generally have a conflict of interest in all matters before the Township involving LTS Builders, LLC. See, Golla, supra; DeLano, supra. In each instance of a conflict, Barrett would be required to abstain and to fully satisfy the disclosure requirements of Section 1103( of the Ethics Act. Assuming the action is final and Barrett is no longer in litigation against LTS Builders, LLC, Section 1103(a) of the Ethics Act would not prohibit him from participating in discussions and votes pertaining to matters involving LTS Builders, LLC including, but not limited to, land development and subdivision projects conditioned upon the assumptions that: (1) Barrett would not, in a private capacity, be an adverse party in any other legal action(s) against or involving LTS Builders, LLC; and (2) any such participation by Barrett as a Township Supervisor would not involve the prospect of a private pecuniary benefit prohibited by Section 1103(a). In response to your second question, the common law rule of necessity has no applicability to a "conflict" under the Ethics Act. Where a conflict would exist under the Ethics Act, Barrett would still be permitted to participate under certain limited circumstances as enunciated in Section 1103(j) of the Ethics Act. Preliminarily, In Garner, Opinion 93 -004, the Commission considered the issue of whether, under Section 30) of the Ethics Law, a supervisor on a three member board would be permitted to second a motion even if he had a conflict where the two remaining supervisors would have opposing views or where one of the remaining two members would be absent from the meeting. Citing Juliante, Order 809, the Commission first noted that seconding a motion is a use of authority of office. Hence an individual with a conflict would not be permitted to participate, make a motion, second a motion, or vote. See, Garner, supra. However, the Commission also stated: [T]he General Assembly in enacting Section 3(j) would not have allowed a public official /employee on a three member board who has a conflict to be able to vote unless a second to the motion could be made so that the matter would be in the posture for a vote. Thus, we believe that since there is a need for a second to a motion in order to make Section 3(j) of the Ethics Law operative, the General Assembly intended as to three members [sic] boards for the public official with a conflict to be allowed to second so that if the other supervisors became deadlocked, the public official could then vote provided the disclosure requirements are satisfied. Garner, at 6. In light of the foregoing, the Commission concluded that Section 3(j) of the Ethics Law does allow an individual to second a motion where the two remaining supervisors have opposing views or where one of the other two supervisors is absent. The Commission emphasized that its ruling was expressly limited in its application to three member boards and to the question of seconding a motion. In applying Garner to the submitted facts, you are advised that under Section 1103(j) of the Ethics Act, Barrett would be permitted to second a motion only in a situation where: (1) the two remaining Supervisors would have opposing views; or (2) one of the other two Supervisors would be absent from the meeting. Allowing Barrett to second the motion in either of the above scenarios would put the matter in a posture for a vote. Thereafter, if the other two Supervisors would cast opposing votes, Barrett Hiscott- Barrett /Fera, 06 -517 February 17, 2006 Page 6 would be permitted to vote to break the tie provided he satisfied the disclosure requirements of Sections 1103(j). In response to your third question, because Barrett is an adverse party in litigation against or involving the Township, Shawnee Development, Inc. and C & M Shawnee Land Holdings, L.P., Barrett would generally have a conflict of interest in matters pertaining to the lawsuit, such as litigation strategy, possible settlement, terms of settlement, etc. because such official action could financially impact upon the lawsuit wherein Barrett is a party adverse to the Township. Further, Barrett would generally have a conflict of interest in all matters before the Township involving Shawnee Development, Inc. and C & M Shawnee Land Holdings, L.P. In each instance of a conflict, Barrett would be required to abstain and to fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. See, Golla, supra; DeLano, supra. In response to your fourth question, despite the conflict, Barrett would still be permitted to participate within the narrow parameters of Section 1103(j) of the Ethics Act, delineated above. In response to your fifth question, it is noted that the Shawnee Preservation Society of which Della Ferra and his spouse are members, is not involved in the litigation against the Township, Shawnee Development, Inc. and C & M Shawnee Land Holdings, L.P. Conditioned upon the assumptions that: (1) neither Della Fera nor his spouse, either as individuals or through the Shawnee Preservation Society, have had any involvement with the plaintiffs' pursuit of their complaint; (2) neither Della Fera nor his spouse will accept any recoupment of any prior contribution made by the Shawnee Preservation Society; and (3) there is no other basis for a conflict of interest under Section 1103(a of the Ethics Act, Della Fera would not have a conflict of interest under Section 1103(a of the Ethics Act in matters involving the pending litigation docketed to No. 3796 Civil 005, and the land division property of Shawnee Development, Inc. and C & M Shawnee Land Holdings, L.P. Given the answer to your fifth question, your sixth question need not be addressed. It is recommended that Barrett and Della Fera obtain legal advice regarding case law as to bias, which is not addressed herein. 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 Smithfield Township ( "Township "), Brian E. Barrett "Barrett" and Vincent Della Fera "Della Fera") are p ublic officials subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. In response to your first and second questions relating to a lawsuit filed by Barrett against Ralph Wunder, LTS Builders, LLC, Larry T. Simon, The Better Life for Smithfield Township Committee, and Gateway Abstract, Inc., and docketed to No. 9583 Civil 2005, you are advised as follows. Assuming that the action is pending, given that Barrett is an adverse party in litigation against or involving LTS Builders, LLC, Barrett would generally have a conflict of interest in all matters before the Township involving LTS Builders, LLC. In each instance of a conflict, Barrett would be required to abstain and to fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Assuming the action is final and Barrett is no longer in litigation against LTS Builders, LLC, Section 1103(a) of the Ethics Act would not prohibit him from participating in discussions and votes pertaining to matters involving LTS Builders, LLC including, but not limited to, land development and subdivision projects conditioned upon the Hiscott- Barrett /Fera, 06 -517 February 17, 2006 Page 7 assumptions that: (1) Barrett would not, in a private capacity, be an adverse party in any other legal action(s) against or involving LTS Builders, LLC; and (2) any such participation by Barrett as a Township Supervisor would not involve the prospect of a private pecuniary benefit prohibited by Section 1103(a). The common law rule of necessity has no applicability to a "conflict" under the Ethics Act. Where a conflict would exist under the Ethics Act, Barrett would still be permitted to participate under certain limited circumstances. Under Section 1103(j) of the Ethics Act, Barrett would be permitted to second a motion only in a situation where: (1) the two remaining Supervisors would have opposing views; or (2) one of the other two Supervisors would be absent from the meeting. Allowing Barrett to second the motion in either of the above scenarios would put the matter in a posture for a vote. Thereafter, if the other two Supervisors would cast opposing votes, Barrett would be permitted to vote to break the tie provided he satisfied the disclosure requirements of Sections 1103(j). In response to your third and fourth questions relating to a lawsuit filed by Barrett captioned, "Pamela Barrett and Brian Barrett, her husband, Marianne Higgins and Michelle Chase vs. Smithfield Township Board of Supervisors vs. Shawnee Development, Inc. vs. C & M Shawnee Land Holdings, L.P," and docketed to No. 3796 Civil 2005, because Barrett is an adverse party in litigation against or involving the Township, Shawnee Development, Inc. and C & M Shawnee Land Holdings, L.P., Barrett would generally have a conflict of interest in matters pertaining to the lawsuit, such as litigation strategy, possible settlement, terms of settlement, etc. because such official action could financially impact upon the lawsuit wherein Barrett is a party adverse to the Township. Further, Barrett would generally have a conflict of interest in all matters before the Township involving Shawnee Development, Inc. and C & M Shawnee Land Holdings, L.P. Despite the conflict, Barrett would still be permitted to participate within the narrow parameters of Section 1103(j) of the Ethics Act, delineated above. In response to your fifth question which asks whether it is appropriate for Della Fera to abstain on voting on matters pertaining to the land use appeal docketed to No. 3796 Civil 2005, and the land division property of Shawnee Development, Inc. and C & M Shawnee Land Holdings, L.P., it is noted that the Shawnee Preservation Society of which Della Ferra and his spouse are members, is not involved in the litigation against the Township, Shawnee Development, Inc. and C & M Shawnee Land Holdings, L.P. Conditioned upon the assumptions that: (1) neither Della Fera nor his spouse, either as individuals or through the Shawnee Preservation Society, have had any involvement with the plaintiffs' pursuit of their complaint; (2) neither Della Fera nor his spouse will accept any recoupment of any prior contribution made by the Shawnee Preservation Society; and (3) there is no other basis for a conflict of interest under Section 1103(a of the Ethics Act, Della Fera would not have a conflict of interest under Section 1103(a of the Ethics Act in matters involving the pending litigation docketed to No. 3796 ivil 2005, and the land division property of Shawnee Development, Inc. and C & M Shawnee Land Holdings, L.P. It is recommended that Barrett and Della Fera obtain legal advice regarding case law as to bias, which is not addressed herein. 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. Hiscott- Barrett /Fera, 06 -517 February 17, 2006 Page 8 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