HomeMy WebLinkAbout07-509 FERRINGERRita L. Ferringer
Best Real Estate
625 Dutch Lane
Hermitage, PA 16148
Dear Ms. Ferringer:
ADVICE OF COUNSEL
February 13, 2007
07 -509
This responds to your letter of January 5, 2007, 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 present any prohibitions or restrictions upon a city
commissioner with regard to voting to rezone two vacant parcels of property from
institutional and residential use to commercial use where: (1) one of the two parcels is
owned by the in -laws of the daughter of the city commissioner; and (2) the owners of
the parcels stand to receive a substantial price for the sale of their properties to a
company if the parcels would be rezoned.
Facts: You are a Commissioner for the City of Hermitage ( "City "). The Board of
Commissioners will be requested to rezone two currently vacant parcels of land from
institutional and residential use to commercial use. You state that the owners of the
parcels are seeking to sell the parcels to a "big box company" and that the sales price
for the parcels would be substantial if the parcels would be rezoned.
One of the two parcels is owned by your daughter's in -laws. You state that the
perception is that your daughter's in -laws might benefit from the rezoning and eventual
sale of their parcel. You seek guidance as to whether the Ethics Act would prohibit you
from voting on the request to rezone the two parcels to commercial use.
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.
Ferringer, 07 -509
February 13, 2007
Page 2
As a City Commissioner, 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 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
Ferringer, 07 -509
February 13, 2007
Page 3
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.
In each instance of a conflict of interest, Section 1103(] of the Ethics Act requires
the public official /public 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. The abstention requirement 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 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 your specific inquiry, you are
advised as follows.
Subject to the statutory exceptions to the definition of "conflict" or "conflict of
interest," pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of
interest in matters before the Board of Commissioners that would financially benefit you,
an immediate family member, or a business with which you or an immediate family
member is associated. As noted above, the term "immediate family" is defined to
include a parent, spouse, child, brother or sister. Your daughter is an immediate family
member. However, the in -laws of your daughter are not your immediate family
members. Therefore, you would not have a conflict of interest in matters pertaining to
the rezoning of the parcel of land owned by your daughter's in -laws unless there would
be some basis for a conflict of interest other than the aforesaid in -law relationship.
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 City's Home Rule Charter.
Conclusion: As a Commissioner for the City of Hermitage, you are a public
official and are subject to the provisions of the Public Official and Employee Ethics Act
( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Subject to the statutory exceptions to the
definition of `conflict" or "conflict of interest," pursuant to Section 1103(a) of the Ethics
Act, you would have a conflict of interest in matters before the Board of Commissioners
that would financially benefit you, an immediate family member, or a business with
which you or an immediate family member is associated. Your daughter is an
immediate family member. The in -laws of your daughter are not your immediate family
members. You would not have a conflict of interest in matters pertaining to the rezoning
of a parcel of land owned by your daughter's in -laws unless there would be some basis
for a conflict of interest other than the aforesaid in -law relationship. In each instance of
a conflict of interest, you would be required to abstain from participation and to fully
satisfy the disclosure requirements of Section 1103(j) of the Ethics Act.
Ferringer, 07 -509
February 13, 2007
Page 4
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,
Robin M. Hittie
Chief Counsel