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HomeMy WebLinkAbout09-534 MainWilliam R. Main Vice - Chairman Center Township Supervisors P.O. Box 435 Rogersville, PA 15359 Dear Mr. Main: ADVICE OF COUNSEL April 1, 2009 09 -534 This responds to your letter dated February 4, 2009, received February 13, 2009, by which you requested an advisory from the Pennsylvania 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 member and vice - chairman of a township board of supervisors with regard to participating in or voting on matters pertaining to a business that is drilling methane gas wells in the area of the township, when: (1) the business is affiliated with a local coal company; (2) the local coal company leases land to an individual ( "the lessee ") who keeps her cattle on the land; (3) the supervisor raises his own cattle and has a verbal agreement with the lessee to keep his cattle on the aforesaid leased land; (4) the supervisor is not a party to the lessee's lease with the local coal company; and (5) the supervisor's agreement with the lessee existed before the business began its drilling operations. Facts: As a Member and Vice - Chairman of the Board of Supervisors of Center Township ( "the Township "), you request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. You are employed full -time by the Township as a roadmaster. You state that in your spare time, you raise and sell beef cattle. Because you do not own sufficient land on which to raise your cattle, you have a verbal agreement with an individual named "Mrs. Jean Shumaker" ( "Mrs. Shumaker ") to keep your cattle with her own cattle on land that she leases from a local coal company named "Consol Energy." You state that you are not a party to Mrs. Shumaker's lease with Consol Energy. You tend and feed Mrs. Shumaker's cattle in lieu of paying her for allowing you to keep your cattle on the land that she leases from Consol Energy. Main, 09 -534 April 1, 2009 Page 2 You state that Consol Energy is "affiliated" with a company named "CNX Gas Co., LLC" ( "CNX "). You state that CNX is drilling numerous methane gas wells for Consol Energy in the area of the Township. You further state that your agreement with Mrs. Shumaker has been ongoing for many years, and existed before CNX began its drilling operations. Based upon the above submitted facts, you ask whether the Ethics Act would prohibit or restrict you from participating in or voting on matters pertaining to CNX. 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. It is further noted that, pursuant to the same aforesaid Sections of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), an opinion /advice may be given only as to prospective (future) conduct. To the extent that your inquiry relates to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent your inquiry relates to future conduct, your inquiry may and shall be addressed. As a Member and Vice - Chairman of the Township Board of Supervisors, 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 Main, 09 -534 April 1, 2009 Page 3 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 related to Section 1103(a) 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. "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. "Financial interest." Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. 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. Main, 09 -534 April 1, 2009 Page 4 In each instance of a conflict of interest, the public official /public employee would be required to abstain fully from participation. The abstention requirement would not be limited merely to voting, but would extend 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. Subject to certain statutory exceptions, 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. 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 Ethics Act to the instant matter, it is noted that Section 1103(a) of the Ethics Act pertaining to conflicts of interest does not prohibit public officials /public employees from having outside business activities or employment; however, the public official /public employee may not use the authority of his public position - -or confidential information obtained by being in that position - -for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. Examples of conduct that would be prohibited under Section 1103(a) would include: (1) the pursuit of a private business opportunity in the course of public action, Metrick, Order 1037; (2) the use of governmental facilities, such as governmental telephones, postage, staff, equipment, research materials, or other property, or the use of governmental personnel, to conduct private business activities, Freind, Order 800; Pancoe, supra; and (3) the participation in an official capacity as to matters involving the business with which the ublic official /public employee is associated in his private capacity or private client(s). Miller, Opinion 89 -024; Kannebecker, Opinion 92 -010. A reasonable and legitimate expectation that a business relationship will form may also support a finding of a conflict of interest. Amato, Opinion 89 -002. In each instance of a conflict of interest, the public official /public employee would be required to abstain from participation, and in the instance of a voting conflict, to abstain and fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Any business as to which you are a director, officer, owner, or employee or in which you have a financial interest would be considered a business with which you are associated. A sole proprietorship or self - employed individual is included within the definition of the term "business" as set forth in the Ethics Act. 65 Pa.C.S. § 1102; In Re: Nomination Petition of Paulmier, 594 Pa. 433, 937 A.2d 364 (2007). Subject to the statutory exceptions to the definition of "conflict" or "conflict of interest" as set forth in the Ethics Act, 65 Pa.C.S. § 1102, pursuant to Section 1103(a) of the Ethics Act, in your capacity as a Member and Vice - Chairman of the Township Board of Supervisors, you would have a conflict of interest in matters that would financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. In response to your specific inquiry, you are advised as follows. The fact that you have a tenuous /remote connection with CNX, by virtue of having a verbal agreement with Mrs. Shumaker to keep your cattle on land g nd that she leases from Consol Energy, which entity is "affiliated" with CNX, would not in and of itself form the basis of a conflict of interest for you under the Ethics Act in matters pertaining to CNX. Cf., Armstrong, Opinion 97 -001. Main, 09 -534 April 1, 2009 Page 5 Accordingly, you are advised that absent some basis for a conflict of interest such as a private pecuniary benefit to you, a member of your immediate family, or a business with which you or a member of your immediate family is associated, Section 1103(a) of the Ethics Act would not prohibit or restrict you from participating in or voting on matters before the Township Board of Supervisors pertaining to CNX. 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. Conclusion: As a Member and Vice - Chairman of the Board of Supervisors of Center Township ( "the Township "), you are a public official subject to the provisions of the Public Official and Employee Ethics Act (`Ethics Act "), 65 Pa.C.S. § 1101 et seq. Based upon the submitted facts that: (1) in your spare time, you raise and sell beef cattle; (2) because you do not own sufficient land on which to raise your cattle, you have a verbal agreement with an individual named "Mrs. Jean Shumaker" (Mrs. Shumaker ") to keep your cattle with her own cattle on land that she leases from a local coal company named "Consol Energy "; (3) you are not a party to Mrs. Shumaker's lease with Consol Energy; (4) you tend and feed Mrs. Shumaker's cattle in lieu of paying her for allowing you to keep your cattle on the land that she leases from Consol Energy; 5) Consol Energy is "affiliated" with a company named "CNX Gas Co., LLC" ("CNX"); 6) CNX is drilling numerous methane gas wells for Consol Energy in the area of t e Township; and (7) your agreement with Mrs. Shumaker has been ongoing for many years, and existed before CNX began its drilling operations, you are advised as follows. The fact that you have a tenuous /remote connection with CNX, by virtue of having a verbal agreement with Mrs. Shumaker to keep your cattle on land that she leases from Consol Energy, which entity is "affiliated" with CNX, would not in and of itself form the basis of a conflict of interest for you under the Ethics Act in matters pertaining to CNX. Absent some basis for a conflict of interest such as a private pecuniary benefit to you, a member of your immediate family, or a business with which you or a member of your immediate family is associated, Section 1103(a) of the Ethics Act would not prohibit or restrict you from participating in or voting on matters before the Township Board of Supervisors pertaining to CNX. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, 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 Main, 09 -534 April 1, 2009 Page 6 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