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HomeMy WebLinkAbout06-517-S HiscottJohn A. Hiscott, Esquire 900 Scott Street Stroudsburg, PA 18360 -1820 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; Supplemental Advice. Dear Mr. Hiscott: ADVICE OF COUNSEL April 5, 2006 06 -517 -S This responds to your letter of March 1, 2006, by which you requested supplemental advice from the State Ethics Commission. Issue: Whether, pursuant to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., the Advice of Counsel that was previously provided in Hiscott, Advice 06 -517, would remain in effect or would change where: (1) one of the subjects of the Advice, a township supervisor who was previously a plaintiff in both a defamation suit and in a land use appeal, 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that gave financial support to plaintiffs in the land use appeal, as detailed more fully in Advice 06 -517, has now withdrawn as a party appellant in the land use appeal, with his wife remaining a party; and (2) the other subject of the Advice, a township supervisor who was previously a member of and contributor to the aforesaid non - profit association, has withdrawn such membership, with his wife remaining a member of the association and the association being an appellant in a second land use appeal. Facts: By letter dated January 17, 2006, you initially sought an advisory from the tate Ethics Commission. In response to your request, Hiscott, Advice 06 -517 was issued to you on February 17, 2006, which Advice is incorporated herein by reference. By letter dated March 1, 2006, you provided the following additional information. On January 26, 2006, Smithfield Township (Township) Supervisor Brian E. Barrett (Barrett) moved the Monroe County Court of Common Pleas to withdraw Barrett as a party appellant in the case of Pamela Barrett and Brian Barrett, her husband, Marianne Higgins and Michelle Chase, Appellants vs. Smithfield Township Board of Supervisors, Appellee vs. Shawnee Development, Inc., Intervenor - Appellee vs. C & M Hiscott- Barrett /Fera, 06 -517 -S April 5, 2006 Page 2 Shawnee Land Holdings, L.P., Intervenor - Appellee, filed at No. 3796 Civil 2005. On February 15, 2006, the Court granted the Motion of Barrett. However, Barrett's spouse, Mrs. Pamela Barrett, remains a party to the lawsuit. The Shawnee Preservation Society has given financial support to plaintiffs in the above land use appeal at No. 3796 Civil 2005. Additionally, on January 12, 2006, a second Land Use Appeal was commenced in the Monroe County Court of Common Pleas at No. 248 Civil 2006, captioned Shawnee Preservation Society, Appellants vs. Smithfield Township Board of Supervisors, Appellee and Shawnee Development, Inc. and C & M Shawnee Land Holdings, L.P., Intervenors. You state that this second land use appeal concerns action taken by the Township Board of Supervisors on December 14, 2005. On February 23, 2006, Township Supervisor Vincent Della Fera (Della Fera) withdrew as a member of the Shawnee Preservation Society. However, his spouse, Mrs. Della Fera, continues as a member of the Shawnee Preservation Society. You conclude by asking whether the above additional facts would change the base Advice as to those instances where conflicts were found. In particular, if Barrett would have a conflict regarding Shawnee Development, Inc., C& M Shawnee Land Holdings, LLC and Della Fera would have a conflict, you ask whether it would be 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 due to the one or two other abstentions. Discussion: In that Hiscott, Advice of Counsel, 06 -517 is incorporated herein by reference, the quotations, citations and commentary as to the Ethics Act set forth within the base Advice will not be repeated. In response to your inquiries concerning Barrett, it is noted that the submitted supplemental facts only vary from the facts that you originally submitted and that were set forth in the base advice with respect to the withdrawal of Barrett as a party to the lawsuit docketed at No. 3796 Civil 2005. Barrett's wife, Mrs. Pamela Barrett, is still a party to that lawsuit. As was noted in the base Advice, a conflict of interest may be based upon a financial impact upon a public official's immediate family member, which would include a spouse. See, 65 Pa.C.S. § 1102 (definitions of "conflict" or "conflict of interest" and "immediate family "). Thus, you are advised that Barrett's withdrawal as a party to the lawsuit at 3796 Civil 2005 would be immaterial for purposes of an analysis of your questions under the Ethics Act. Specifically, Barrett's withdrawal as a party to the lawsuit at 3796 Civil 2005 would not in any way alter the advice previously given in Advice of Counsel, 06 -517, because of the continuation of Barrett's spouse as a party to the specified proceedings. Where Barrett would have a conflict of interest pursuant to the Ethics Act as set forth in Advice of Counsel, 06 -517, he would likewise have a conflict of interest under the submitted supplemental facts. Concerning Della Fera, it is noted that the base Advice specifically determined that Della Fera would not have a conflict in 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., 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's withdrawal from the Shawnee Preservation Society with the continued membership of his spouse would not in any way result in a change to the Advice you were previously given. Hiscott- Barrett /Fera, 06 -517 -S April 5, 2006 Page 3 As for the land use appeal filed on January 12, 2006, in the Monroe County Court of Common Pleas at No. 248 Civil 2006, captioned Shawnee Preservation Society, Appellants vs. Smithfield Township Board of Supervisors, Appellee and Shawnee Development, Inc. and C & M Shawnee Land Holdings, L.P., Intervenors, you are advised that Della Fera would not have a conflict of interest under the Ethics Act in matters pertaining to the said land use appeal conditioned upon the assumptions that: (1) the Shawnee Preservation Society is not a business with which Della Fera or his spouse is associated, as defined by the Ethics Act (see, 65 Pa.C.S. § 1102 (definition of "business with which he is associated ")); (2) neither Della Fera nor his spouse will at any time be parties to the litigation; (3) neither Della Fera nor his spouse could be financially impacted by the litigation; and (4) there is no other basis for a conflict of interest under Section 1103(a) of the Ethics Act. As to your reference to the common law rule of necessity, the base Advice noted the inapplicability of that rule to conflicts under the Ethics Act. Voting conflicts under the Ethics Act are governed by Section 1103(j) of the Ethics Act. It is noted that you couch your question in the context of both Barrett and Della Fera having conflicts, which is unusual given the prior determination as to Della Fera. In any event, you are advised as follows. Subject to certain narrowly- construed voting conflict exceptions, in each instance of a conflict, Section 1103(j) requires the public official /public employee to abstain completely 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. The exception for breaking a tie vote despite a conflict is available exclusively to members of three - member governing bodies who first abstain and disclose their conflicts as required by Section 1103(j) of the Ethics Act. See, Pavlovic, Opinion 02 -005. The other exception is not limited to three - member boards but requires that the following conditions be met: (1) the board must 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 must disclose their conflicts as required by Section 1103(j). Id. The Commission has cautioned that when applicable, the voting conflicts exceptions would allow for voting only, and would not permit other forms of participation. See, Whitlock, Opinion 04 -015. Under either of the above exceptions, the conflict(s) triggering the applicability of the exception would have to be bona fide conflict(s) of interest under the Ethics Act and not a mere machination to take advantage of the exception. A conflict under some law other than the Ethics Act or some purported, non bona fide conflict would not result in the application of a voting conflict exception under Section 1103(j) of the Ethics Act. 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 noted in Hiscott, Advice of Counsel, 06 -517, Smithfield Township (Township) Supervisors Brian E. Barrett (Barrett) and Vincent Della Fera (Della Fera) are public officials subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Barrett's withdrawal as a party to the lawsuit of Pamela Barrett and Brian Barrett, her husband, Marianne Higgins and Michelle Chase, Appellants vs. Smithfield Township Board of Supervisors, Appellee vs. Shawnee Development, Inc., Intervenor - Appellee vs. C & M Shawnee Land Holdings, L.P., Intervenor - Appellee, filed in the Monroe County Court of Common Pleas at No. 3796 Civil 2005, would not in any way alter the advice previously given in Advice of Hiscott- Barrett /Fera, 06 -517 -S April 5, 2006 Page 4 Counsel, 06 -517, because of the continuation of Barrett's spouse as a party to the specified proceedings. Where Barrett would have a conflict of interest pursuant to the Ethics Act as set forth in Advice of Counsel, 06 -517, he would likewise have a conflict of interest under the submitted supplemental facts. As noted in Advice of Counsel, 06 -517, Della Fera would not have a conflict in 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., 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's withdrawal from membership in the Shawnee Preservation Society with the continued membership of his spouse would not in any way result in a change to the Advice previously given. Della Fera would not have a conflict of interest under the Ethics Act in matters pertaining to the land use appeal filed on January 12, 2006, in the Monroe County Court of Common Pleas at No. 248 Civil 2006, captioned Shawnee Preservation Society, Appellants vs. Smithfield Township Board of Supervisors, Appellee and Shawnee Development, Inc. and C & M Shawnee Land Holdings, L.P., Intervenors, conditioned upon the assumptions that: (1) the Shawnee Preservation Society is not a business with which Della Fera or his spouse is associated as defined by the Ethics Act (65 Pa.C.S. § 1102 (definition of "business with which he is associated ")); (2) neither Della Fera nor his spouse will at any time be parties to the litigation; (3) neither Della Fera nor his spouse could be financially impacted by the litigation; and (4) there is no other basis for a conflict of interest under Section 1103(a) of the Ethics Act. Under either of the voting conflict exceptions of Section 1103(j) of the Ethics Act, the conflict(s) triggering the applicability of the exception would have to be bona fide conflict(s) of interest under the Ethics Act and not a mere machination to take advantage of the exception. A conflict under some law other than the Ethics Act or some purported, non bona fide conflict would not result in the application of a voting conflict exception under 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, Hiscott- Barrett /Fera, 06 -517 -S April 5, 2006 Page 5 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