The Appearance of Impropriety

David F. Friedman, II, was a member of a group called Concerned Citizens of Upper Mount Bethel Township.  In 2020, Friedman and other group members filed a lawsuit opposing a recent amendment to the Township’s zoning ordinance that allowed the construction of a massive warehouse in a rural and residential area.  The lawsuit was dismissed in July, 2021, and the group appealed to the Commonwealth Court.  In November, 2021, Friedman was elected to the Board of Supervisors campaigning on his opposition to the text amendment. 

            Before taking office, Friedman sought an advisory opinion from the State Ethics Commission asking whether he needs to remove himself from the Concerned Citizens Group and the lawsuit in order to vote on issues relating to the text amendment.  The Commission advised Friedman that as long as he remained a member of the group and a plaintiff in the lawsuit, he would have to recuse himself from any action regarding the text amendment. The Commission also advised Friedman that he could not use the authority of his position as supervisor to gain a private pecuniary benefit “such as by taking action to reduce or eliminate personal liability for counsel fees.”

            In January, 2022, Friedman withdrew from the appeal and the group and, shortly thereafter, the remaining parties withdrew the appeal.  The Board of Supervisors then considered whether to file a lawsuit to recoup the Township’s legal fees in fighting the lawsuit. The lawsuit would have included Friedman as a defendant.  Friedman participated in deliberations and, not surprisingly, cast the deciding vote against filing the lawsuit.

            The State Ethics Commission went after Friedman and found that he violated the State Ethics Act by participating in deliberations and voting to eliminate his personal liability for counsel fees for the lawsuit he and others filed against the Township.

            Friedman appealed the Commission’s finding to the Commonwealth Court arguing that he could not have violated the Ethics Act because he sought an advisory opinion before he took office, and that he received no private pecuniary benefit from his vote.  The Commonwealth Court  shot down those arguments.  Although Friedman had partially complied with the advisory opinion by removing himself from the Concerned Citizen’s group and the lawsuit, he ignored the Commission’s additional warning not to participate in any action concerning whether the Township should sue members of the group for counsel fees.  The Court noted that just because Friedman withdrew from the lawsuit did not mean that he no longer had exposure for counsel fees.  As to Friedman’s argument that he did not violate the Ethics Act because he did not receive a monetary benefit, the Court found that receiving an affirmative monetary benefit and avoiding a monetary loss amount to the same conflict of interest.

            Finally, the Commonwealth Court noted that the Ethic Act is concerned just as much with the “appearance of impropriety” as it is with an actual conflict of interest, and that Friedman’s actions at the very least created the appearance of impropriety.

The take away from this case is that an elected official needs to abide with all aspects of an advisory opinion, and to avoid even the appearance of impropriety so as not to run afoul of the State Ethics Act. Freidman v. State Ethics Commission, 1220 C.D. 2023 (Pa. Cmwlth. Ct., 11/8/2024).