Berks County Bar Association The Berks Barrister Spring 2019 - 21

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In Meyer, the HRC recommended to City Council a new
historic district: Lemmon Row, eight houses built by Thomas
Lemmon in 1868, situated a block north of the city-designated
historic "Mexican War Streets," characterized by late 19th century
homes. The eight houses are nearly identical. At 1405 Buena
Vista Street, however, the Lemmon-designed house had been
demolished in 2013 due to poor structural conditions, as the rear
of the building had collapsed. The newspaper accounts called it
"eight almost-identical houses with a missing tooth on the odd
side of the 1400 block of Buena Vista Street." (Source: Diana
Nelson Jones, "In North Side, Plans For Empty Lot Spark Push
For New Historic District." Pittsburgh Post-Gazette, February 6,
2017). Heather Johnson purchased the vacant lot, and she and
her architect husband, Camden Leeds, designed a house with a
scorched wood exterior that immediately sets it apart from the
brick homes beside it. Known as shou sugi ban, this old Japanese
technique involves charring wood to make it fireproof and insectresistant. Id.

agreed that there had been no violation of due process to Meyer
and the residents of Lemmon Row opposing the Johnson design
and issuance of the Certificate: There had been no guidelines
formally adopted, and the HRC was not required to wait until
Lemmon Row was officially designated, and developed its own
guidelines. The decision to use Department of the Interior
guidelines, which required consistency and harmony, but
discouraged replicas and mimicry of the exact designs, was in the
view of the Commonwealth Court, a proper exercise of discretion.
Accordingly, the approval of the design was upheld, and there now
is a contemporary house on Lemmon Row.

Johnson had earlier submitted a design plan to the HRC, and
responded to suggestions to harmonize the design with others in
the row, such as moving windows and harmonizing the garage
door. Todd Meyer, the Appellant in this case, who owns three
properties in Lemmon Row, opposed the demolition in the first
place, and then opposed the design for its replacement, saying
the new townhouse would not resemble its neighbors. Meyer
nominated Lemmon Row for historic designation in response to
the original plan. He was hoping to prevent the construction by
asking that the HRC utilize the adjacent "Mexican War Streets"
architectural guidelines for Lemmon Row, until Lemmon Row
had its own set of architectural requirements in place. As he
had with the original plan, Meyer opposed the revised plan. The
HRC, however, accepted the revised plan over Meyer's opposition,
and pointed out that the HRC was not required to accept the
Mexican War Streets building guidelines, and instead recognized
architectural and preservation guidelines of the Department
of the Interior. Meyer took the position that the new house
should replicate 1860s architecture, and not contemporary
architecture. The HRC however, was of the opinion that the
Interior Department guidelines provided that "infill should
not mimic historic but be in harmony." Id. The Certificate of
Appropriateness was granted, and Meyer appealed the decision to
the Court of Common Pleas of Allegheny County, which affirmed
the decision.

The Public Official and Employee Ethics Act "Ethics Act,"
65 Pa.C.S.A. §§ 1101-1113 states part of its purpose that the
Legislature"hereby declares that public office is a public trust and
that any effort to realize personal financial gain through public
office other than compensation provided by law is a violation of
that trust." 65 Pa.C.S.A. § 1101(a). The Ethics Act prohibits
bribery, personal monetary benefit from contract awards and
official decisions, and conflicts of interest.

Meyer then appealed the decision to the Commonwealth
Court. The Commonwealth Court affirmed the decision of the
HRC and the trial court. The Commonwealth Court agreed that
the HRC was comprised of persons of sufficient special expertise,
and that there was no error in deferring to their opinions on
approving the design and materials for the house. The Court

Abstention from Voting: Don't assume that there's
not a "conflict of interest," even if an official doesn't
earn a cent as a result of the action.
Sivick v. State Ethics Commission, No. 252 C.D. 2018, 2019
Pa.Commw. LEXIS 153 (Pa.Commw., January 3, 2019)

An official can find himself or herself in jeopardy under
the Ethics Act even without realizing any personal "benefit"
in the usual sense of making money or other tangible gains as
the result of an official action or decision. Benefit to a family
member is sufficient for civil and criminal liability for conflicts of
interest under the Ethics Act. Section 1103(a) of the Ethics Act
prohibits a "public official or public employee [from] engag[ing]
in conduct that constitutes a conflict of interest." Section 1102
of the Ethics Act defines "[c]onflict" or "conflict of interest" as:
"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." 65 Pa.C.S.A. § 1102 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." Id.
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Spring 2019 | 21


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Berks County Bar Association The Berks Barrister Spring 2019

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