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HomeMy WebLinkAbout08-537 GawronskiJordan B. Yeager, Esquire Boockvar & Yeager 8 West Oakland Avenue Doylestown, PA 18901 Dear Mr. Yeager: ADVICE OF COUNSEL April 16, 2008 08 -537 This responds to your letter dated February 18, 2008, and your faxed transmission received March 10, 2008, by which you requested advice from the Pennsylvania State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., would impose any prohibitions or restrictions upon a township supervisor with regard to participating in votes, negotiations, or executive session discussions of the township board of supervisors as to matters pertaining to a dispute between the township and a company that engages in oil and gas well drilling operations, where: (1) the dispute pertains to whether, pursuant to state law, the company would be permitted to drill oil and gas wells and extract oil and gas in locations outside of the only two township zoning districts where the township's zoning ordinance would permit such operations; (2) the township supervisor holds an oil and gas lease on property located outside of the two zoning districts in which the township zoning ordinance would permit oil and gas well drilling operations; and (3) the township supervisor would receive a pecuniary benefit if oil and gas well drilling and extraction would be carried out on his property or if oil and gas would be extracted from his property as a result of drilling on a nearby property. Facts: As Solicitor for Nockamixon Township ( "Township "), located in Bucks ounty, Pennsylvania, you have been authorized by Township Supervisor Henry Gawronski ( "Gawronski ") to request an advisory from the Pennsylvania State Ethics Commission on his behalf. You have submitted facts that may be fairly summarized as follows. In 2007, the Township Board of Supervisors ( "Board ") approved an amendment to the Township's Zoning Ordinance, which amendment limited oil and gas well drilling operations in the Township to the Industrial Zoning District and the Quarry Zoning District. Yeager, 08 -537 April 16, 2008 Page 2 You state that an oil and gas company named "Arbor Resources, LLC" ( "Arbor") recently obtained a permit from the Commonwealth of Pennsylvania, Department of Environmental Protection ( "DEP ") to conduct oil and gas well drilling operations on a property located in the Township outside of the Industrial Zoning District and the Quarr Zoning District. You state that Arbor contends that the Oil and Gas Act, 58 P.S. 601.101 et seqq., preempts the Township's Zoning Ordinance in certain material respects. — Specifically, Arbor contends that it could drill oil and gas wells and extract oil and gas at locations outside of the Township's Industrial Zoning District and Quarry Zoning District without having to comply with or seek relief from relevant Township ordinances. 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 The Township currently is in negotiations with Arbor over issues of concern between the parties, including the issue of the Township's restrictions on oil and gas well drilling outside of the Industrial Zoning District and the Quarry Zoning District. You state that there is a threat of litigation as to issue(s) between the Township and Arbor. Gawronski holds an oil and gas lease on property ( "the Property ") located outside of the Industrial Zoning District and the Quarry Zoning District. You state that under the aforesaid lease, Gawronski would receive a pecuniary benefit if: (1) oil and gas well drilling and extraction would be carried out on the Property; or (2) oil and gas would be extracted from the Property as a result of drilling on a nearby property. Based upon the above submitted facts, you ask whether the Ethics Act would prohibit Gawronski from participating in the Board's votes, negotiations, or executive session discussions as to matters pertaining to the dispute between the Township and Arbor over the Township's restrictions on oil and gas well drilling outside of the Industrial Zoning District and the Quarry Zoning District. 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, Gawronski is a public official subject to the provisions of the Ethics Act. Yeager, 08 -537 April 16, 2008 Page 3 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 the performance of duties and responsibilities unique to a particular public office or position of public employment. 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. The use of authority of office 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. The above statutory definition of "conflict" or "conflict of interest" contains two exclusions, referred to herein 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 Yeager, 08 -537 April 16, 2008 Page 4 having a de minimis (insignificant) economic impact. Thus, when a matter that would otherwise constitute a conflict of interest under the Ethics Act would have an insignificant economic impact, a conflict would not exist and Section 1103(a) of the Ethics Act would not be implicated. 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. In each instance of a voting conflict, Section 1103(j) 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. 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 addition, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer or give to a public official /public employee anything of monetary value and no public official /public employee shall solicit or accept anything of monetary value based upon an understanding that the vote, official action, or judgment of the public official /public employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. 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, in his capacity as a Township Supervisor, Gawronski would generally have a conflict of interest in matters that would financially benefit him, a 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, Gawronski would be required to abstain fully from participation. The abstention requirement would not be limited to voting, but rather, would extend to any use of authority of office. In the event of a voting conflict, Gawronski would be required to abstain and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Turning to your specific inquiry, you are advised as follows. Although the submitted facts indicate that Gawronski would receive a pecuniary benefit if oil and gas well drilling and extraction would be carried out on the Property or if oil and gas would be extracted from the Property as a result of drilling on a nearby property, there is no indication in the submitted facts of whether Gawronski has any business dealings with Arbor or whether Gawronski or other individuals /entities would be financially impacted by the outcome of the dispute between the Township and Arbor. Therefore, only the following general guidance may be given. Yeager, 08 -537 April 16, 2008 Page 5 If the Board's votes, negotiations, or executive session discussions as to the dispute between the Township and Arbor regarding the Township's restrictions on oil and gas well drilling outside of the Industrial Zoning District and the Quarry Zoning District would be reasonably anticipated to financially impact Gawronski, a member of his immediate family, or a business with which he or a member of his immediate family is associated, then Gawronski would have a conflict of interest as to such matters unless the de minimis exclusion or the class /subclass exclusion would be applicable. In each instance of a conflict of interest, Gawronski would be required to abstain fully from participation, and in the instance of a voting conflict, to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. The ropriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the Second Class Township Code or case law as to bias. Conclusion: As a Supervisor for Nockamixon Township ( "Township "), located in Bucks County, Pennsylvania, Henry Gawronski ( "Gawronski ") 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, in his capacity as a Township Supervisor, Gawronski would generally have a conflict of interest in matters that would financially benefit him, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Based upon the submitted facts that: (1) in 2007, the Township Board of Supervisors ( "Board ") approved an amendment to the Township's Zoning Ordinance, which amendment limited oil and gas well drilling operations in the Township to the Industrial Zoning District and the Quarry Zoning District; (2) a company named `Arbor Resources, LLC" ( "Arbor "), which engages in oil and gas well drilling operations, recently obtained a permit from the Commonwealth of Pennsylvania, Department of Environmental Protection ( "DEP ") to conduct oil and gas well drilling operations on a property located in the Township outside of the Industrial Zoning District and the Quarry Zoning District; (3) Arbor contends that the Oil and Gas Act, 58 P.S. § 601.101 et seq., preempts the Township's Zoning Ordinance in certain material respects; (4) Arbor contends that it could drill oil and gas wells and extract oil and gas at locations outside of the Township's Industrial Zoning District and Quarry Zoning District without having to comply with or seek relief from relevant Township ordinances; (5) the Township currently is in negotiations with Arbor over issues of concern between the parties, including the issue of the Township's restrictions on oil and gas well drilling outside of the Industrial Zoning District and Quarry Zoning District; (6) there is a threat of litigation as to issue(s) between the Township and Arbor; (7) Gawronski holds an oil and gas lease on property ( "the Property') located outside of the Industrial Zoning District and the Quarry Zoning District; and (8) under the aforesaid lease, Gawronski would receive a pecuniary benefit if oil and gas well drilling and extraction would be carried out on the Property or if oil and gas would be extracted from the Property as a result of drilling on a nearby property, you are advised as follows. If the Board's votes, negotiations, or executive session discussions as to the dispute between the Township and Arbor regarding the Township's restrictions on oil and gas well drilling outside of the Industrial Zoning District and the Quarry Zoning District would be reasonably anticipated to financially impact Gawronski, a member of his immediate family, or a business with which he or a member of his immediate family is associated, then Gawronski would have a conflict of interest as to such matters unless the de minimis exclusion or the class /subclass exclusion to the Ethics Act's definition of "conflict" or "conflict of interest, 65 Pa.C.S. § 1102, would be applicable. In each instance of a conflict of interest, Gawronski would be required to abstain fully from participation, and in the instance of a voting conflict, to abstain and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Yeager, 08 -537 April 16, 2008 Page 6 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