HomeMy WebLinkAbout07-524 BROWNDear Mr. Oswalt:
ADVICE OF COUNSEL
April 19, 2007
W. Lee Oswalt, III, Esquire
Goldstein, Heslop, Steele, Clapper & Oswalt
414 N. Logan Boulevard
Altoona, PA 16602 -1749
07 -524
This responds to your letter dated March 13, 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 township
supervisor with regard to: (1) participating in matters involving a developer where the
spouse of an individual with an apparent business relationship with the developer filed a
lawsuit against the township supervisor and the supervisor's spouse relative to a
dispute over a private matter; (2) participating in matters involving a Township lawsuit
where the outcome of the lawsuit could potentially affect the value of real property
owned by the supervisor and his spouse; or (3) voting on matters involving issues upon
which a non - profit corporation with which the supervisor was previously affiliated as a
member and officer has advocated certain positions.
Facts: As Solicitor for Warriors Mark Township ( "Township ") in Huntingdon
ounty, you have been authorized by Township Supervisor Mark Brown ( "Brown ") to
request an advisory from the State Ethics Commission. You note that Brown was
appointed by the Township Board of Supervisors to fill a vacant Supervisor position in
February 2007. You pose specific inquiries with regard to each of three scenarios. You
have submitted extensive facts as to these scenarios, which may be fairly summarized
as follows.
Scenario One
In 1992, Brown and his spouse purchased a property ( "the Brown Property ")
consisting of approximately 85 acres from Sidney Ormsbye "Ormsbye "). The Brown
Property was subdivided from a larger parcel owned by Ormsbye. Thereafter, J. Galen
Gilliland ( "Gilliland "), one of the primary developers in the Township, purchased acreage
from Ormsbye. Gilliland subsequently subdivided said acreage and sold one of the
subdivided lots to Mark Walter, the spouse of Rebecca Walter. The Walters reside on
this property ( "the Walter Property "), which is adjacent to part of the Brown Property.
Oswalt /Brown, 07 -524
April 19, 2007
Page 2
Pursuant to the Township's Subdivision and Land Development Ordinance ( "SLD
Ordinance "), Gilliland was required to install a fifty -foot wide buffer zone between the
Brown Property and the Walter Property at the time of the subdivision. Gilliland claims
that small saplings were planted to accomplish the buffer zone. The saplings did not
grow, and the Browns complained to the Township.
Sewage disposal for the Brown Property is accomplished by an on -lot septic
system. In accordance with a deed provision, the leach field for the Browns' septic
system is located on the Walter Property. In the past, Mrs. Walter has complained to
the Township and the Pennsylvania Department of Environmental Protection ( "DEP ")
that the Browns' septic system is malfunctioning. Although investigations by the local
sewage enforcement officer and representatives of DEP did not find any
malfunctions /violations, Mr. Walter recently filed a lawsuit against the Browns relative to
the alleged malfunctioning of the Browns' septic system. You have submitted copies of
the Complaint filed by Mr. Walter against the Browns in the Huntington County Court of
Common Pleas and the Browns' Answer to the Complaint.
Mrs. Walter is an employee of Warmark Realty LLC ( "Warmark "). Among other
things, Warmark markets and sells lots that are located in Gilliland's developments. It is
the Township's belief that Gilliland and not Warmark is the actual developer of
Gilliland's tracts and that Gilliland is the owner of, or has an ownership interest in,
Warmark.
Gilliland owns a substantial number of tracts of land within the Township, and he
has obtained approval to develop, or is in the process of developing, four or five of
those tracts. Gilliland and the Township have been involved in numerous disputes
regarding Gilliland's developments, some of which have not been resolved. With regard
to one dispute, Gilliland has filed a lawsuit against the Township in the Huntington
County Court of Common Pleas, alleging that the Township acted improperly under the
Municipal Planning Code when it refused to grant Gilliland a fifth extension of time for
submitting revised plans for one of his developments. Another outstanding dispute
concerns Gilliland's refusal to reimburse the Township for professional fees incurred by
the Township in having Gilliland's various development plans reviewed by the
Township's professional consultants. Both the Township and Gilliland are attempting to
resolve some of the outstanding issues between the parties.
Mrs. Walter attended meetings of the Township Board of Supervisors over the
past few years at which she stated, on more than one occasion, that she was acting as
an agent for Gilliland. You state that it is anticipated that Mrs. Walter, on behalf of
Gilliland, might be present and attempt to participate during discussions between the
Board of Supervisors and Gilliland with regard to the resolution of the parties'
outstanding disputes.
In view of the apparent business relationship between Mrs. Walter and Gilliland
and Brown's involvement in the lawsuit filed against him by Mr. Walter, you ask whether
Brown would have a conflict of interest that would preclude him from voting on any
issues that might come before the Board of Supervisors relative to any of Gilliland's
developments. You state that the theory underlying a conflict of interest would be that if
and when Brown would vote against Gilliland's developments, he would be "punishing"
Gilliland as a result of the agency /business /employment relationship(s) between
Gilliland and Mrs. Walter, which would lead Gilliland to pressure or otherwise take
action against Mrs. Walter to drop the lawsuit against the Browns, thereby resulting in a
private pecuniary benefit to the Browns.
Scenario Two
Pursuant to the Township's SLD Ordinance, all lots must be contiguous to a
public road. As a result, for numerous lots, a narrow strip of the lot extends from the
Oswalt /Brown, 07 -524
April 19, 2007
Page 3
public road to the largest portion of the lot, which is located fairly far from the public
road. The shape of these lots tends to resemble a flag attached to a pole (hereinafter
"flag lots ").
The Walter Property is a flag lot. The narrow or "pole" portion of the Walter
Property is bordered on one side by the Brown Property and on the other side by
property owned by Michael Barr and Angela Berrena ( "the Barr Property "). You have
submitted a copy of a subdivision plan ( "the Plan ") for the Walter Property and the
surrounding area. The Plan indicates that the septic drain field for the Brown Property's
septic system is located in the "pole" portion of the Walter Property closest to the public
road and extends through most of the width of the "pole" portion. The Plan further
indicates that there is an easement over the Barr Property to provide entry to the Walter
Property at a point in the "pole" portion above the septic drain field.
Approximately one year ago, Mr. Barr moved the entryway for the Walter
Property closer to the Brown Property without having obtained prior authorization from
the Township. The Walters did not complain to the Township about Mr. Barr's unilateral
action. You state that Mr. Barr has claimed that he moved the entryway because, in its
prior location, it caused drainage problems on his property. You further state that if the
entryway is not moved back to its original position, it might interfere with the drainage
field for the Browns' septic system and thereby lower the value of the Brown Property.
The Township commenced legal proceedings against Mr. Barr and Ms. Berrena
because it believes that Mr. Barr violated the SLD Ordinance by moving the entryway
for the Walter Property closer to the Brown Property. Additionally, the Township is
concerned that the newly relocated entryway has the potential to interfere with the
Browns' septic easement /septic system.
The Township's case against Mr. Barr and Ms. Berrena was scheduled for a
hearing before a magisterial district judge during the summer of 2006, but prior to the
hearing, the parties agreed to attempt to resolve the matter. However, the matter was
not resolved, and the Township intends to proceed with the prosecution of its case.
During the course of the litigation between the Township and Mr. Barr and Ms.
Berrena, Brown was consulted in order to obtain his perspective with regard to what
would be a reasonable settlement. Brown indicated on more than one occasion that he
was not opposed to some type of reasonable compromise and when asked to express
his view on various settlement proposals, he stated that he did not object to a
settlement concept devised by the Township and Mr. Barr.
You ask whether Brown would have a conflict of interest in voting on the manner
in which the Township should proceed in its case against Mr. Barr and Ms. Berrena or in
otherwise participating in the Board of Supervisors' deliberations regarding said
proceedings.
Scenario Three
Until very recently, Brown was a member and Treasurer of "Save Our Streams,
Inc.," a Pennsylvania non - profit corporation ( "the Corporation "). The primary purpose of
the Corporation is to work to maintain the water quality of Warriors Mark Run and
Spruce Creek, two creeks located in or near the Township. Brown resigned from his
office and membership with the Corporation either shortly before or after he was
appointed to fill the vacant Supervisor position.
You state that while Brown was affiliated with the Corporation, the Corporation
advocated a position that could be regarded as contrary to one or more of Gilliland's
developments located in the Dry Hollow area of the Township. Specifically, the
Corporation advocated that the Township should require Gilliland to perform a
Oswalt /Brown, 07 -524
April 19, 2007
Page 4
hydrogeologic study in the area around and near Dry Hollow before allowing Gilliland to
proceed with developments in said area. However, the Board of Supervisors did not
require such a study. You state that there may have been other instances where the
Corporation and /or its members advocated positions contrary to Gilliland's interests
and /or developments.
You ask whether Brown would have a conflict of interest in voting on any matters
before the Board of Supervisors that would involve issues upon which the Corporation
has taken or advocated a position at any time before, during and /or after Brown's
involvement with the Corporation.
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 a Township Supervisor, Brown is 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:
Oswalt /Brown, 07 -524
April 19, 2007
Page 5
§ 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.
"Immediate family." A parent, spouse, child, brother
or sister.
"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.
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.
Sections 1103(b) and 1103(c) of the Ethics Act, pertaining to improper influence,
provide as follows:
Oswalt /Brown, 07 -524
April 19, 2007
Page 6
§ 1103. Restricted activities
(b) Seeking improper influence. —No person shall
offer or give to a public official, public employee or nominee
or candidate for public office or a member of his immediate
family or a business with which he is associated, anything of
monetary value, including a gift, loan, political contribution,
reward or promise of future employment based on the
offeror's or donor's understanding that the vote, official
action or judgment of the public official or public employee or
nominee or candidate for public office would be influenced
thereby.
(c) Accepting improper influence. —No public
official, public employee or nominee or candidate for public
office shall solicit or accept anything of monetary value,
including a gift, loan, political contribution, reward or promise
of future employment, based on any understanding of that
public official, public employee or nominee that the vote,
official action or judgment of the public official or public
employee or nominee or candidate for public office would be
influenced thereby.
65 Pa. C. S. §§ 1103(b), (c).
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.
In applying the above provisions of the Ethics Act to the instant matter, you are
advised that pursuant to Section 1103(a) of the Ethics Act, Brown would generally have
a conflict of interest in matters before the Township Board of Supervisors that would
financially impact him or his spouse.
Your specific inquiries shall now be addressed.
In response to your first specific inquiry /scenario, you are advised as follows. In
the absence of a private pecuniary benefit to Brown, Brown's spouse, any other
immediate family member of Brown, or any business with which Brown or a member of
his immediate family is associated, the elements for a conflict of interest under Section
1103(a) of the Ethics Act would not exist relative to Brown's participation in matters
pertaining to Gilliland's developments. Under the submitted facts, unless there would
be an improper understanding contrary to Section 1103(b) or Section 1103(c) of the
Ethics Act, such as an improper understanding involving the discontinuance of Mr.
Walter's lawsuit against the Browns, the Ethics Act would not prohibit Brown from
participating in matters before the Board of Supervisors pertaining to Gilliland's
developments.
In response to your second specific inquiry /scenario, you are advised as follows.
Given that the outcome of the Township's legal proceedings against Mr. Barr and Ms.
Berrena would impact the value of the Browns' property, Brown would have a conflict of
interest under Section 1103(a) of the Ethics Act with regard to matters before the
Township Board of Supervisors pertaining to those legal proceedings. As noted above,
in each instance of a conflict of interest, Brown would be required to abstain fully from
participation and to satisfy the disclosure requirements of Section 1103(j) of the Ethics
Act.
Oswalt /Brown, 07 -524
April 19, 2007
Page 7
In response to your third specific inquiry /scenario, you are advised that in view of
Brown's resignation from his membership and office with the Corporation, Brown would
not have a conflict of interest under Section 1103(a) of the Ethics Act in matters before
the Township Board of Supervisors that would involve the Corporation or issues upon
which the Corporation has taken or advocated a position. See, DeLano, Opinion 88-
008 (wherein the Commission held that a public official who had a conflict under the
Ethics Act due to his membership with a citizen's group that was involved in a matter
before his governmental body could remove himself from the conflict by withdrawing
from his membership with that group).
It is recommended that Brown 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 a Supervisor for Warriors Mark Township ( "Township "), Mark
Brown ( "Brown ") is a public official subject to the provisions of the Public Official and
Employee Ethics Act ("Ethics Act "), 65 Pa.C.S. § 1101 et seq. Pursuant to Section
1103(a) of the Ethics Act, Brown would generally have a conflict of interest in matters
before the Township Board of Supervisors that would financially impact him or his
spouse. In the absence of a private pecuniary benefit to Brown, Brown's spouse, any
other immediate family member of Brown, or any business with which Brown or a
member of his immediate family is associated, the elements for a conflict of interest
under Section 1103(a) of the Ethics Act would not exist relative to Brown's participation
in matters pertaining to developments of J. Galen Gilliland ( "Gilliland "), a developer in
the Township. Under the submitted facts, unless there would be an improper
understanding contrary to Section 1103(b) or Section 1103(c) of the Ethics Act, the
Ethics Act would not prohibit Brown from participating in matters before the Township
Board of Supervisors pertaining to Gilliland's developments. Brown would have a
conflict of interest under Section 1103(a) of the Ethics Act with regard to matters before
the Township Board of Supervisors pertaining to the Township's legal proceedings
against Michael Barr and Angela Berrena because the outcome of such legal
proceedings would impact the value of the Browns' property. In each instance of a
conflict of interest, Brown would be required to abstain fully from participation and to
satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. In view of
Brown's resignation from his membership and office with "Save Our Streams, Inc.," a
Pennsylvania non - profit corporation ( "the Corporation "), Brown would not have a conflict
of interest in matters before the Board of Supervisors that would involve the Corporation
or issues upon which the Corporation has taken or advocated a position. It is
recommended that Brown 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
Oswalt /Brown, 07 -524
April 19, 2007
Page 8
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