HomeMy WebLinkAbout10-624-S Caffrey
ADVICE OF COUNSEL
March 29, 2011
Susan B. Caffrey, Commissioner
South Fayette Township
1084 Lakemont Drive
Bridgeville, PA 15017
10-624-S
Dear Ms. Caffrey:
This responds to your letter dated February 9, 2011, by which you requested
supplemental advice 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 has been offered a full-time position of
employment with 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:
In your public capacity, you are a Township Commissioner for South
Fayette Township (“Township”), located in Allegheny County, Pennsylvania. By letter
dated September 17, 2010 (postmarked October 12, 2010, and received October 14,
2010), Township Manager Michael W. Hoy (“Mr. Hoy”) submitted an initial request for
an advisory from the Pennsylvania State Ethics Commission on your behalf. In
response to Mr. Hoy’s initial advisory request, Hoy, Advice 10-624 was issued on
November 15, 2010.
The initial advisory request submitted by Mr. Hoy 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.
Caffrey, 10-624-S
March 29, 2011
Page 2
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 you 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.
Hoy, Advice of Counsel 10-624 determined that you are a public official subject
to the Ethics Act and that TCC is a business with which you are associated in your
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), you would have a conflict of interest in matters before the Township Board of
Commissioners that would financially impact you, 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.
Hoy, 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 you, a member of your immediate family, a business with which you or a
member of your immediate family is associated (including but not limited to TCC), or
customer(s)/client(s) of a business with which you or a member of your immediate
family is associated (including but not limited to MarkWest Liberty), the Ethics Act would
not prohibit you 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.
In your February 9, 2011, advisory request letter, you state that you have been
offered full-time employment with MarkWest Liberty in an administrative capacity with
the same job duties that you currently perform for MarkWest Liberty as an employee of
TCC. You state that you have not received an offer letter, but you anticipate that your
employment status will change during the latter part of February 2011.
In light of the above additional facts, you request a supplemental advisory.
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.
Caffrey, 10-624-S
March 29, 2011
Page 3
As a Township Commissioner, you are a public official as that term is defined in
the Ethics Act, and therefore you are subject to the provisions of the Ethics Act.
This Supplemental Advice incorporates herein by reference the quotations,
citations and commentary as to the Ethics Act set forth within Hoy, Advice of Counsel
10-624.
In considering the additional submitted facts, it is initially noted that upon
becoming an employee of MarkWest Liberty, you would face a greater likelihood of a
conflict of interest arising for you as a Township Commissioner in matters involving
oil/gas drilling than you would face as an employee of TCC. This is because the focus
of an analysis as to whether a conflict would exist based upon your employer and its
business relationships would shift to MarkWest Liberty and its customer(s)/client(s) and
prospective customer(s)/client(s).
Of course, a conflict would not exist when one or both of the statutory exclusions
to the definition of “conflict” or “conflict of interest” as set forth in the Ethics Act, 65
Pa.C.S. § 1102, would be applicable.
You are advised that u pon your becoming an employee of MarkWest Liberty,
MarkWest Liberty would be a business with which you would be associated in your
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, you would have a conflict of interest in
any matter before the Township Board of Commissioners that would financially impact
you, MarkWest Liberty, MarkWest Liberty’s customer(s)/client(s), or MarkWest Liberty’s
prospective customer(s)/client(s) when there would be a reasonable expectation that a
business relationship would form. See, Kannebecker, Opinion 92-010; Miller, 89-024;
Amato, Opinion 89-002.
Sections 1103(a), 1103(b), and 1103(c) of the Ethics Act would not prohibit you
from participating in discussions or votes by the Township Board of Commissioners
when both of the following conditions would be met: (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 you, a member of
your immediate family, a business with which you or a member of your immediate family
is associated (including but not limited to MarkWest Liberty), customer(s)/client(s) of a
business with which you or a member of your immediate family is associated or
prospective customer(s)/client(s) when there would be a reasonable expectation that a
business relationship would form.
The propriety of the proposed conduct has only been addressed under the Ethics
Act.
Conclusion:
As a Commissioner for South Fayette Township (“Township”),
located in Allegheny County, Pennsylvania, 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 additional submitted facts that: (1) you have been
offered full-time employment in an administrative capacity with a natural gas midstream
gatherer and processor named “MarkWest Liberty Midstream and Resources”
(“MarkWest Liberty”), with the same job duties that you currently perform for MarkWest
Liberty as an employee of a consulting firm named “Tri County Contracting”; and (2) you
have not received an offer letter, but you anticipate that your employment status will
change during the latter part of February 2011, you are advised as follows.
Caffrey, 10-624-S
March 29, 2011
Page 4
U pon your becoming an employee of MarkWest Liberty, MarkWest Liberty would
be a business with which you would be associated in your 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, you would have a conflict of interest in any matter before the Township Board of
Commissioners that would financially impact you, MarkWest Liberty, MarkWest Liberty’s
customer(s)/client(s), or MarkWest Liberty’s prospective customer(s)/client(s) when
there would be a reasonable expectation that a business relationship would form.
Sections 1103(a), 1103(b), and 1103(c) of the Ethics Act would not prohibit you from
participating in discussions or votes by the Township Board of Commissioners when
both of the following conditions would be met: (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 you, a member of your
immediate family, a business with which you or a member of your immediate family is
associated (including but not limited to MarkWest Liberty), customer(s)/client(s) of a
business with which you or a member of your immediate family is associated or
prospective customer(s)/client(s) when there would be a reasonable expectation that a
business relationship would form.
The propriety of the proposed conduct has only been addressed under the Ethics
Act.
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