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HomeMy WebLinkAbout06-539 RalphMaryAnna Ralph 805 Baltimore Pike Chadds Ford, PA 19317 ADVICE OF COUNSEL April 6, 2006 06 -539 Re: Conflict; Public Official /Employee; Township Supervisor; Proposed Zoning Ordinance Amendment; Proposed Development; Potential Impact Upon Real Estate of Public Official or Member(s) of Immediate Family; Class /Subclass Exclusion. Dear Ms. Ralph: This responds to your faxed transmissions received February 24, 2006, and March 6, 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 seq., would impose any prohibition or restrictions upon a Township Supervisor with regard to a proposed zoning ordinance amendment that, if adopted, would accommodate a proposed development in proximity to properties owned by the Supervisor and members of her immediate family. Facts: As a Supervisor of Pennsbury Township (Township), you request an advisory from the State Ethics Commission. You have submitted facts that may be fairly summarized as follows. You state that for some time, the Township has been considering a p roposed ordinance that would amend the Township Zoning Ordinance to allow a Traditional Neighborhood Development (TND) within the existing Multi -Use (MU) District as delineated by the Zoning Ordinance and Zoning Map. The MU District in the Township is on the south side of U.S. Route 1. The proposed amendment would permit a TND: "(i) developed under common authority and in accordance with a common plan; (ii) comprising not less than five (5) acres in gross area; (iii) located either (a) entirely within the Multi -Use District (MU); or Ralph, 06 -539 April 6, 2006 Page 2 (b) if (x) in common ownership or control and (y) contiguous to a tract in the MU District (tracts separated only by an existing street or road being considered contiguous) in a Residential District, such that the five (5) acre minimum may be achieved by adding the acreage of two or more of such contiguous tracts, partially within the Multi -Use District (MU) and partially within a Residential District." February 24, 2006, faxed transmission of Ralph, Letter, at 1. You have submitted various maps labeled Attachments 1 -3, which are incorporated herein by reference. Your property is located in a R -2 (two acre minimum) residential district on the north side of U.S. Route 1. Your mother and your daughter own properties in close proximity to your property. The entrance to your property is a shared driveway that is solely owned by your mother. You state that you have no fee simple interest in property that is owned by your mother or daughter. If adopted, the proposed amendment to the Township Zoning Ordinance would accommodate a proposed development for properties located south of Route 1, including an adjacent three -acre residentially zoned (R-3 one acre minimum) tract of land owned by a developer who has presented a sketch plan for the development. Your property is not under agreement to be sold to the developer. You state that neither you nor your family has any intention of selling your properties. You further note that your property is not part of the sketch plan presented by the developer and could not be made part of the developer's plan because of the narrow access to your property. As to the latter point, you have submitted a document that appears to set forth Township restrictions applicable to common driveways for interior lots. Although the developer has been asked and has agreed to construct a sewage treatment facility that would serve properties other than the property proposed for development, you state that your property is not among the properties proposed to be served by the sewage treatment facility. In a supplemental letter of March 6, 2006, you state that you anticipate that one Township Supervisor will be voting in favor of the ordinance and another Township Supervisor will be voting against the ordinance, thereby creating a deadlock/non- action. You state your view that the resolution of the development issue for these Route 1 parcels is critical to the Township's character. You state that by offering the landowner /developer an option other than MU choices, the Township can plan for development in compliance with the Route 1 Corridor Planning Studies and Township character. Based upon the foregoing, you ask whether you would have a conflict of interest under the Ethics Act as to the aforesaid proposed ordinance that would amend the Township Zoning Ordinance. 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. Ralph, 06 -539 April 6, 2006 Page 3 It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint, which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent you have inquired as to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may, and shall be addressed. As a Township Supervisor, you are a public official subject to the provisions of the Ethics Act. 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 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(a), (j). The following terms pertaining to conflicts of interest under the Ethics Act are defined 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 Ralph, 06 -539 April 6, 2006 Page 4 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. 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. It is noted that your mother and your daughter are both members of your immediate family. Subject to certain voting conflict exceptions, in each instance of a conflict, Section 1103(] of the Ethics Act 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 duty to abstain when a conflict exists extends beyond voting to any use of authority of office. The use of authority of office is more than the mere mechanics of voting and encompasses all of the tasks needed to perform the functions of a given position. See, Juliante, Order No. 809. Use of authority of office includes, but is not limited to, discussing, conferring with others, lobbying for a particular result, and voting. Having set forth the above general parameters, it is noted that the above 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 conflict of interest as to an action having a de minimis (insignificant) economic impact. See, Kolb, Order 1322; Schweinsburq, Order 900. 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" in no way differently) than the other members of the class /subclass. 65 Pa.C.S. § 1102; see, Kablack, Opinion 02 -003; 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, supra. Ralph, 06 -539 April 6, 2006 Page 5 In applying the above provisions of the Ethics Act to the facts that you have submitted, you are advised that your participation or vote as to the zoning ordinance amendment would be a use of the authority of public office. Further, such action would be likely to financially impact you, your mother, and your daughter as owners of properties in the vicinity of the aforesaid proposed development. Thus, all of the elements of a conflict of interest pursuant to Section 1103(a) of the Ethics Act could exist. Furthermore, it seems likely that the zoning ordinance amendment could significantly affect the value of real estate including the properties owned by you, your mother, and your daughter, such that the de minimis exception would not apply. However, under the submitted facts, it cannot be conclusively determined whether the class /subclass exclusion would apply. Without sufficient factual information including —at a minimum —the size, current value and uses of the properties belonging to each impacted property owner, it is impossible to determine whether there exists a true class /subclass of property owners who are similarly situated as a result of relevant shared characteristics. See, Kablack, supra. Similarly, without real estate appraisals as to both the current values of all impacted properties and also the future values of such properties if the proposed ordinance is adopted, it is impossible to determine whether all members of the class /subclass would be reasonably affected to the same degree by the proposed action. Kablack, supra. In Laser, Opinion 93 -002, the Commission concluded 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. Given the insufficiency of the facts that you have submitted, this advisory must necessarily be limited to providing general guidance. To the extent the proposed ordinance that would amend the Township Zoning Ordinance would financially impact you, your mother, or your daughter, who are owners of properties in the vicinity of the proposed development that would be accommodated by the ordinance, you would have a conflict of interest in matters pertaining to the said proposed ordinance unless the class /subclass exclusion would be applicable. In each instance of a conflict of interest, you would be required to abstain fully from participation and to fully satisfy the disclosure requirements of Section 11030) of the Ethics Act. As to the potential deadlock on this issue before your three - member board, you are advised as follows. As noted above, there are two voting conflict exceptions in Section 1103(j) of the Ethics Act. 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. To the extent you would have a conflict of interest under Section 1103(a) of the Ethics Act as to the proposed ordinance that would amend the Township Zoning Ordinance, Section 1103(j) of the Ethics Act would permit you, as a member of a three - member board, to vote to break a deadlock of the other two Supervisors, despite your Ralph, 06 -539 April 6, 2006 Page 6 conflict, if you would first abstain and disclose the conflict as required by Section 1103(j) of the Ethics Act. See, Pavlovic, supra; Garner, Opinion 93 -004. 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 Pennsbury Township ( "Township "), you are a public official subject to the rovisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. In response to your inquiry as to whether, pursuant to the Ethics Act, you would have a conflict of interest as to a proposed ordinance that would amend the Township Zoning Ordinance to accommodate a proposed development in proximity to properties owned by you, your mother, and your daughter, you are advised as follows. To the extent the aforesaid proposed ordinance would financially impact you, your mother, or your daughter, then you would have a conflict of interest in matters pertaining to the said proposed ordinance unless the class /subclass exclusion to the Ethics Act's definition of `conflict" or "conflict of interest" would be applicable. In each instance of a conflict of interest, you would be required to abstain fully from participation and to fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. To the extent you would have a conflict of interest under Section 1103(a) of the Ethics Act as to the aforesaid proposed ordinance that would amend the Township Zoning Ordinance, Section 1103(j) of the Ethics Act would permit you, as a member of a three - member board, to vote to break a deadlock of the other two Supervisors despite your conflict if you would first abstain and disclose the conflict as required by 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, 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