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HomeMy WebLinkAbout10-624 HOY ADVICE OF COUNSEL November 15, 2010 Michael W. Hoy, Township Manager South Fayette Township 515 Millers Run Road Morgan, PA 15064 10-624 Dear Mr. Hoy: This responds to your letter dated September 17, 2010 (postmarked October 12, 2010, and received October 14, 2010), 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.C.S. §1101 et seq., would impose any prohibitions or restrictions upon a township commissioner, who in her private capacity as an employee of a consulting firm provides accounting services to a natural gas midstream gatherer and processor, as to participating in discussions or votes by the township board of commissioners regarding a proposed township ordinance that would regulate oil and gas drilling within the township. Facts: You are the Township Manager for South Fayette Township (“Township”), located in Allegheny County, Pennsylvania. You have been authorized by Township Commissioner Susan Caffrey (“Ms. Caffrey”) to request an advisory from the Pennsylvania State Ethics Commission on her behalf, based upon submitted facts that may be fairly summarized as follows. In a private capacity, Ms. Caffrey is an hourly, at-will employee of a consulting firm named “Tri County Contracting” (“TCC”). In the aforesaid capacity, Ms. Caffrey is currently providing accounting services on a full-time basis to a natural gas midstream gatherer and processor named “MarkWest Liberty Midstream and Resources” (“MarkWest Liberty”). MarkWest Liberty is based in Atlasburg, Pennsylvania, and Canonsburg, Pennsylvania. Ms. Caffrey’s work for MarkWest Liberty is administrative in nature, and she has no decision-making authority or involvement in strategic planning. Before Ms. Caffrey became employed with TCC, she was employed directly with MarkWest Liberty as a part-time accountant from approximately September 2009 to January 2010. MarkWest Liberty builds pipeline gathering systems to collect natural gas from wells brought online and transmit such gas to a processing plant located in Houston, Pennsylvania. MarkWest Liberty is not in the business of drilling natural gas wells. Hoy, 10-624 November 15, 2010 Page 2 The Township is currently considering the adoption of an ordinance that would modify the current Township zoning ordinance to establish rules and regulations regarding oil and gas drilling within the Township. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose any restrictions upon Ms. Caffrey as to participating in any discussions or votes by the Township Board of Commissioners regarding a proposed Township ordinance that would regulate oil and gas drilling within the Township. 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 Commissioner, Ms. Caffrey is a public official as that term is defined in the Ethics Act, and therefore Ms. Caffrey is 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). Hoy, 10-624 November 15, 2010 Page 3 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. 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. Juliante, Order 809. In each instance of a conflict of interest, a public official/public employee would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. Sections 1103(b) and 1103(c) of the Ethics Act provide: Hoy, 10-624 November 15, 2010 Page 4 § 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). It is noted that Section 1103(a) of the Ethics Act 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, 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 public 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 applying the above provisions of the Ethics Act to the instant matter, you are advised that TCC is a business with which Ms. Caffrey is associated in her capacity as an employee. Subject to the statutory exclusions 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, Ms. Caffrey would have a conflict of interest in matters before the Township Board of Commissioners that would financially impact her, TCC, or TCC’s customer(s)/client(s), including but not limited to MarkWest Liberty. See, Kannebecker, supra; Miller, supra. In response to your specific question, you are advised as follows. Subject to the conditions that: (1) there would be no improper influence as prohibited by Sections 1103(b)-(c) of the Ethics Act; and (2) there would be no basis for a conflict of interest such as a private pecuniary benefit to Ms. Caffrey, a member of her immediate family, a business with which she or a member of her immediate family is associated (including but not limited to TCC), or customer(s)/client(s) of a business with which she or a Hoy, 10-624 November 15, 2010 Page 5 member of her immediate family is associated (including but not limited to MarkWest Liberty), the Ethics Act would not prohibit Ms. Caffrey from participating in discussions or votes by the Township Board of Commissioners regarding a proposed Township ordinance that would regulate oil and gas drilling within the Township. 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 First Class Township Code. Conclusion: As a Commissioner for South Fayette Township (“Township”), located in Allegheny County, Pennsylvania, Susan Caffrey (“Ms. Caffrey”) 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. Based upon the submitted facts that: (1) in a private capacity, Ms. Caffrey is an hourly, at-will employee of a consulting firm named “Tri County Contracting” (“TCC”); (2) in the aforesaid capacity, Ms. Caffrey is currently providing accounting services on a full-time basis to a natural gas midstream gatherer and processor named “MarkWest Liberty Midstream and Resources” (“MarkWest Liberty”); (3) MarkWest Liberty builds pipeline gathering systems to collect natural gas from wells brought online and transmit such gas to a processing plant located in Houston, Pennsylvania; (4) MarkWest Liberty is not in the business of drilling natural gas wells; and (5) the Township is currently considering the adoption of an ordinance that would modify the current Township zoning ordinance to establish rules and regulations regarding oil and gas drilling within the Township, you are advised as follows. TCC is a business with which Ms. Caffrey is associated in her capacity as an employee. Subject to the statutory exclusions 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, Ms. Caffrey would have a conflict of interest in matters before the Township Board of Commissioners that would financially impact her, TCC, or TCC’s customer(s)/client(s), including but not limited to MarkWest Liberty. Subject to the conditions that: (1) there would be no improper influence as prohibited by Sections 1103(b)-(c) of the Ethics Act; and (2) there would be no basis for a conflict of interest such as a private pecuniary benefit to Ms. Caffrey, a member of her immediate family, a business with which she or a member of her immediate family is associated (including but not limited to TCC), or customer(s)/client(s) of a business with which she or a member of her immediate family is associated (including but not limited to MarkWest Liberty), the Ethics Act would not prohibit Ms. Caffrey from participating in discussions or votes by the Township Board of Commissioners regarding a proposed Township ordinance that would regulate oil and gas drilling within the Township. 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. Hoy, 10-624 November 15, 2010 Page 6 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