HomeMy WebLinkAbout12-533 English
ADVICE OF COUNSEL
May 4, 2012
Michael K. English, Esquire
Dillon McCandless King Coulter & Graham L.L.P.
128 West Cunningham Street
Butler, PA 16001
12-533
Dear Mr. English:
This responds to your letters of February 15, 2012, and March 15, 2012, by
which you requested an advisory from the Pennsylvania State Ethics Commission.
Issue:
Whether, pursuant to Section 1103(a) of the Public Official and Employee
Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., a township supervisor who has
executed an oil and gas lease with a company would have a conflict of interest with
regard to a conditional use application for oil and gas drilling on the township
supervisor’s own personal real estate.
Facts:
As Solicitor for Slippery Rock Township (“Township”), located in Butler
County, Pennsylvania, you have been authorized by all Members of the three-Member
Township Board of Supervisors (“Board of Supervisors” or “Board”) to request an
advisory from the Pennsylvania State Ethics Commission as to the following submitted
facts and questions.
Two of the three Township Supervisors, hereinafter referred to as “Supervisor 1”
and “Supervisor 2,” have executed oil and gas leases for the extraction of Marcellus and
Utica Shale gas from their own personal real estate. Under the applicable Township
zoning ordinances, any company that wishes to undertake oil and gas extraction in the
Township is required to apply to the Township for conditional use approval. Conditional
use applications are ruled upon by the Board.
You state that it is possible that a conditional use application could come before
the Board that would be applicable to the parcels of both Supervisor 1 and Supervisor 2,
but the likely scenario is that a conditional use application would be applicable to the
parcel of only one of those two Township Supervisors.
Based upon the above submitted facts, you pose the following questions:
(1) As to each Township Supervisor who has executed an oil and gas lease
with a particular company (that is, Supervisor 1 and Supervisor 2),
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May 4, 2012
Page 2
whether the Township Supervisor would have a conflict of interest with
regard to a conditional use application for oil and gas drilling on that
Township Supervisor’s property; and
(2) What procedures would be permitted under the Ethics Act for the
processing of the approval of a conditional use application pending before
the Board where Supervisor 1 and/or Supervisor 2 would have a conflict of
interest as to such application.
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.
The Township Supervisors are public officials subject to 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).
The following terms related to Section 1103(a) are defined in the Ethics Act as
follows:
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May 4, 2012
Page 3
§ 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. 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.
Having established the above general principles, your specific questions shall
now be addressed.
In response to your first question, you are advised as follows. Supervisor 1 and
Supervisor 2 would each have a conflict of interest under Section 1103(a) of the Ethics
Act with regard to a conditional use application before the Board for oil and gas drilling
on that Township Supervisor’s own property. Subject to the voting conflict exceptions of
Section 1103(j) of the Ethics Act, the Township Supervisor(s) with a conflict of interest
would be required to abstain fully from participation. Additionally, the disclosure
requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event
of a voting conflict.
With regard to your second question, you are advised as follows.
If only one of the two Township Supervisors who have executed oil and gas
leases (that is, Supervisor 1 or Supervisor 2) would have a conflict of interest under
Section 1103(a) of the Ethics Act with regard to a particular conditional use application
(“Application”) pending before the Board, only the Township Supervisor with the conflict
English, 12-533
May 4, 2012
Page 4
of interest would be required to abstain from participation. The requirement to abstain
would preclude participation in a vote on the Application unless a statutory exception of
Section 1103(j) of the Ethics Act would be applicable. Because the Board of
Supervisors is a three-Member board, Section 1103(j) of the Ethics Act would permit the
Township Supervisor with the conflict of interest to break a tie vote of the other
Township Supervisors as long as the Township Supervisor with the conflict of interest
would have initially abstained and fully satisfied the disclosure requirements of Section
1103(j) of the Ethics Act. See, Pavlovic, Opinion 02-005.
If both of the Township Supervisors who have executed oil and gas leases (that
is, Supervisor 1 and Supervisor 2) would have a conflict of interest under Section
1103(a) of the Ethics Act with regard to the Application, both of those Township
Supervisors would be required to abstain from participation except to the limited extent
permitted by Section 1103(j) of the Ethics Act.
The two voting conflict exceptions contained in Section 1103(j) of the Ethics Act
are strictly limited to voting and do not authorize an individual with a conflict to make a
motion to put the matter in a posture for a vote. When two members on a three-
member board would have conflicts of interest, only the non-conflicted member could
make a motion. Since the non-conflicted member could not second his own motion and
it would be otherwise impossible to obtain a second to the motion, either of the two
conflicted members, having previously abstained and disclosed his conflict, could then
second the motion if he would so choose. The two conflicted members could not
discuss or advocate as to the motion. The two conflicted members could only vote on
the motion. Cf., Confidential Opinion, 04-003.
Therefore, only the third Township Supervisor--who would not have a conflict of
interest with regard to the Application--could make a motion as to the Application. If
such a motion would not be made, there would be no opportunity for a motion to be
seconded. If such a motion would be made, either Supervisor 1 or Supervisor 2, having
previously abstained and disclosed his/her conflict, could then second the motion if
he/she would so choose. Supervisor 1 and Supervisor 2 could not discuss or advocate
as to the motion and could only vote on the motion.
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 Second Class Township Code.
Conclusion:
The three Members of the Board of Supervisors (“Board of
Supervisors” or “Board”) of Slippery Rock Township (“Township”), located in Butler
County, Pennsylvania, are public officials 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) two of the three Township Supervisors, hereinafter referred to
as “Supervisor 1” and “Supervisor 2,” have executed oil and gas leases for the
extraction of Marcellus and Utica Shale gas from their own personal real estate; (2)
under the applicable Township zoning ordinances, any company that wishes to
undertake oil and gas extraction in the Township is required to apply to the Township for
conditional use approval; (3) conditional use applications are ruled upon by the Board;
and (4) it is possible that a conditional use application could come before the Board that
would be applicable to the parcels of both Supervisor 1 and Supervisor 2, but the likely
scenario is that a conditional use application would be applicable to the parcel of only
one of those two Township Supervisors, you are advised as follows.
Supervisor 1 and Supervisor 2 would each have a conflict of interest under
Section 1103(a) of the Ethics Act with regard to a conditional use application before the
Board for oil and gas drilling on that Township Supervisor’s own property. Subject to
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May 4, 2012
Page 5
the voting conflict exceptions of Section 1103(j) of the Ethics Act, the Township
Supervisor(s) with a conflict of interest would be required to abstain fully from
participation. Additionally, the disclosure requirements of Section 1103(j) of the Ethics
Act would have to be satisfied in the event of a voting conflict.
If only one of the two Township Supervisors who have executed oil and gas
leases (that is, Supervisor 1 or Supervisor 2) would have a conflict of interest under
Section 1103(a) of the Ethics Act with regard to a particular conditional use application
(“Application”) pending before the Board, only the Township Supervisor with the conflict
of interest would be required to abstain from participation. The requirement to abstain
would preclude participation in a vote on the Application unless a statutory exception of
Section 1103(j) of the Ethics Act would be applicable. Because the Board of
Supervisors is a three-Member board, Section 1103(j) of the Ethics Act would permit the
Township Supervisor with the conflict of interest to break a tie vote of the other
Township Supervisors as long as the Township Supervisor with the conflict of interest
would have initially abstained and fully satisfied the disclosure requirements of Section
1103(j) of the Ethics Act.
If both of the Township Supervisors who have executed oil and gas leases (that
is, Supervisor 1 and Supervisor 2) would have a conflict of interest under Section
1103(a) of the Ethics Act with regard to the Application, both of those Township
Supervisors would be required to abstain from participation except to the limited extent
permitted by Section 1103(j) of the Ethics Act. The two voting conflict exceptions
contained in Section 1103(j) of the Ethics Act are strictly limited to voting and do not
authorize an individual with a conflict to make a motion to put the matter in a posture for
a vote. When two members on a three-member board would have conflicts of interest,
only the non-conflicted member could make a motion. Therefore, only the third
Township Supervisor--who would not have a conflict of interest with regard to the
Application--could make a motion as to the Application. If such a motion would not be
made, there would be no opportunity for a motion to be seconded. If such a motion
would be made, either Supervisor 1 or Supervisor 2, having previously abstained and
disclosed his/her conflict, could then second the motion if he/she would so choose.
Supervisor 1 and Supervisor 2 could not discuss or advocate as to the motion and could
only vote on the motion.
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
English, 12-533
May 4, 2012
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