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HomeMy WebLinkAbout11-002 Gabriel OPINION OF THE COMMISSION Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Raquel K. Bergen Nicholas A. Colafella Mark Volk DATE DECIDED: 3/3/11 DATE MAILED: 3/11/11 11-002 Meghan E. Jones-Rolla, Esquire J. Deron Gabriel, Esquire Meyer Darragh Buckler Bebenek & Eck, Commissioner P.L.L.C. South Fayette Township U.S. Steel Tower, Suite 4850 624 Turnberry Lane 600 Grant Street Oakdale, PA 15071 Pittsburgh, PA 15219 Michael W. Hoy, Township Manager South Fayette Township 515 Millers Run Road Morgan, PA 15064 Dear Ms. Jones-Rolla, Mr. Hoy, and Mr. Gabriel: This Opinion is issued as to Mr. Gabriel’s appeal of Hoy, Advice of Counsel 10-624, and Ms. Caffrey’s Motion to Quash Appeal of Advice of Counsel No. 10-624. I.ISSUE: Whether a person would have legal standing to appeal an Advice of Counsel pursuant to the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq., where the person is not the requestor or subject of the Advice of Counsel or the authorized representative thereof. II.FACTUAL BASIS FOR DETERMINATION: Ms. Caffrey and Mr. Gabriel are Commissioners for South Fayette Township (“Township”), located in Allegheny County, Pennsylvania. Mr. Hoy is the Township Manager. Jones-Rolla/Hoy/Gabriel, 11-002 March 11, 2011 Page 2 Mr. Gabriel has appealed Hoy, Advice of Counsel 10-624, which was issued to Mr. Hoy on behalf of Ms. Caffrey on November 15, 2010. The initial advisory request submitted by Mr. Hoy was expressly authorized by Ms. Caffrey and presented facts that were summarized in the Advice of Counsel, in pertinent part, 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. 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. Hoy, Advice of Counsel 10-624, at 1-2. Based upon the above submitted facts, Mr. Hoy asked 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. Advice of Counsel 10-624 determined that Ms. Caffrey is a public official subject to the Ethics Act and that TCC is a business with which Ms. Caffrey is associated in her capacity as an employee. The Advice further determined that 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, 65 Pa.C.S. § 1103(a), 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. The Advice additionally stated that a reasonable and legitimate expectation that a business relationship would form could also support a finding of a conflict of interest. Advice of Counsel 10-624 concluded that 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 Jones-Rolla/Hoy/Gabriel, 11-002 March 11, 2011 Page 3 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. By letter dated December 15, 2010, Mr. Gabriel appealed Advice of Counsel 10- 624, stating: “I am appealing [the Advice of Counsel] insofar as I have standing to do so as a South Fayette Twp. Cmmr.” December 15, 2010, Appeal Letter of Gabriel, at paragraph 1. The appeal letter and its various attachments did not provide any facts or raise any argument(s) relative to Mr. Gabriel’s own conduct. On January 3, 2011, this Commission received a Motion to Quash Appeal of Advice of Counsel No. 10-624 (“Motion to Quash”) from Ms. Caffrey. In her Motion to Quash, Ms. Caffrey avers, in pertinent part: (1) that Mr. Gabriel’s appeal of Advice of Counsel 10-624 was submitted to this Commission without consulting or obtaining the approval of Mr. Hoy or the Township Board of Commissioners; (2) that pursuant to the Regulations of this Commission, an Advice of Counsel may be appealed to this Commission by the requestor or the subject of the request; and (3) that Mr. Gabriel is neither the requestor nor the subject of Advice of Counsel 10-624. By letters dated January 20, 2011, Ms. Caffrey, Mr. Hoy, and Mr. Gabriel were notified of the date, time and location of the public meeting at which Mr. Gabriel’s request to appeal Hoy, Advice of Counsel 10-624 would be considered. On January 28, 2011, this Commission received Mr. Gabriel’s faxed letter dated January 27, 2011, with attachments. In the aforesaid letter, Mr. Gabriel stated, in part: “I was clear in my appeal that I was acting as a Cmmr., not on behalf of South Fayette Twp. as a whole.” January 27, 2011, Letter of Gabriel, at paragraph 1. On February 23, 2011, this Commission received a letter from Ms. Jones-Rolla, entering her appearance on behalf of Ms. Caffrey. Ms. Jones-Rolla also filed a Memorandum in support of the Advice of Counsel and the Motion to Quash, as well as a Request for Attorneys Fees. Ms. Jones-Rolla raises the following arguments: (1) that just as Mr. Gabriel would have lacked standing to request the initial Advice, he lacks standing to appeal the Advice; (2) that this Commission’s Regulations provide for an appeal from an Advice to be filed by the requestor or the subject of the request, 51 Pa. Code § 13.2(g), and Mr. Gabriel is neither of these; (3) that Mr. Gabriel has no interest in the outcome of the Advice and is not injured by the Advice; and (4) that the Advice is appropriate and should not be reconsidered by this Commission. Ms. Jones-Rolla also notes that Ms. Caffrey has now submitted a request for a Supplemental Advice of Counsel based upon new circumstances, specifically, her receipt of an offer of full-time employment with Mark West Liberty. However, the request for a Supplemental Advice of Counsel is not part of the instant appeal, and Advice of Counsel 10-624 only dealt with Ms. Caffrey’s employment with TCC. At the public meeting on March 3, 2011, Ms. Jones-Rolla and Ms. Caffrey appeared. Ms. Jones-Rolla argued that Mr. Gabriel does not have standing to appeal Advice of Counsel 10-624 because he is neither the requestor nor the subject of the request and no one has authorized him to appeal the Advice of Counsel. Ms. Caffrey stated that she was available to answer any questions of the Commissioners. III.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 requestor based upon the facts that the requestor has submitted. In issuing the advisory based upon the facts that the requestor has submitted, this Commission does not engage in an independent Jones-Rolla/Hoy/Gabriel, 11-002 March 11, 2011 Page 4 investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requestor 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 requestor has truthfully disclosed all of the material facts. In the instant matter, we must decide the threshold issue of whether Mr. Gabriel has legal standing to appeal Hoy, Advice of Counsel 10-624. We shall begin our analysis by reviewing the relevant provisions of the Ethics Act and the Regulations of the State Ethics Commission. Section 1107 of the Ethics Act provides, in pertinent part, as follows: § 1107. Powers and duties of commission In addition to other powers and duties prescribed by law, the commission shall: . . . (11) Provide written advice to any person or the appointing authority or employer of such person, upon their request with respect to such person’s duties under this chapter…. 65 Pa.C.S. § 1107(11). The following term related to Section 1107(11) is defined in the Ethics Act as follows: § 1102. Definitions “Advice.” Any directive of the chief counsel of the State Ethics Commission issued under section 1107(11) (relating to powers and duties of commission) and based exclusively on prior commission opinions, this chapter, regulations promulgated pursuant to this chapter and court opinions which interpret this chapter. 65 Pa.C.S. § 1102. Section 13.2 of the Regulations of this Commission provides, in pertinent part, as follows: § 13.2. Advice of counsel. …. (g) An advice of counsel may be appealed to the Commission by the requestor or the subject of the request. 51 Pa. Code § 13.2(g). In the instant matter, the requestor of the Advice was Mr. Hoy. The subject of the Advice was Ms. Caffrey. The necessary conclusion is that Mr. Gabriel does not have legal standing under Section 13.2 of the Regulations of this Commission to appeal Hoy, Advice of Counsel 10-624 because he is not the requestor or the subject of the Advice of Counsel Jones-Rolla/Hoy/Gabriel, 11-002 March 11, 2011 Page 5 or the authorized representative thereof. Based upon the above analysis, we grant Ms. Caffrey’s Motion to Quash and dismiss Mr. Gabriel’s appeal of Advice of Counsel 10-624 due to Mr. Gabriel’s lack of legal standing. We deny Ms. Caffrey’s Request for Attorneys Fees. This Commission lacks legal authority to award attorneys fees. IV.CONCLUSION: South Fayette Township (“Township”) Commissioner J. Deron Gabriel, Esquire does not have legal standing under Section 13.2 of the Regulations of the State Ethics Commission, 51 Pa. Code § 13.2, to appeal Hoy, Advice of Counsel 10-624, because he is not the requestor or the subject of the Advice of Counsel or the authorized representative thereof. The Motion to Quash Appeal of Advice of Counsel No. 10-624 is granted. The appeal of Advice of Counsel 10-624 is dismissed due to Mr. Gabriel’s lack of legal standing. Ms. Caffrey’s Request for Attorneys Fees is denied. Pursuant to Section 1107(10) of the Ethics Act, the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. Finally, a party may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The party requesting reconsideration must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). By the Commission, Louis W. Fryman Chair