HomeMy WebLinkAbout14-552 Wheeland
ADVICE OF COUNSEL
October 31, 2014
Richard H. Wheeland
1585 Hidden Valley Road
Montoursville, PA 17754
14-552
Dear Mr. Wheeland:
This responds to your undated letter postmarked September 29, 2014, received
October 1, 2014, 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 prohibitions or restrictions upon a township
supervisor with regard to voting on conditional use applications for gas wells received
by the township, where one of the conditional use applications is for a well site on the
farm of the parents of the township supervisor.
Facts:
You request an advisory from the Pennsylvania State Ethics Commission
based upon submitted facts that may be fairly summarized as follows.
You are a Supervisor for Loyalsock Township (“Township”), located in Lycoming
County, Pennsylvania. The Township is currently receiving conditional use applications
for gas wells related to the Marcellus Shale gas industry. One conditional use
application was approved, but its approval is currently being appealed. The Township
has received fourteen other conditional use applications (“the Pending Conditional Use
Applications”) for gas wells, including a conditional use application for a well site on your
parents’ farm. You state that you stand to realize a financial gain if a well pad would be
sited on your parents’ property. You further state that you and your wife live on
property you purchased from your parents and that you currently do not have any
leases with the gas industry.
Based upon the above submitted facts, you ask whether you would be required
to abstain from voting on the conditional use application involving your parents’ farm or
any of the other Pending Conditional Use Applications.
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
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October 31, 2014
Page 2
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. In
this regard, this Advice assumes that the financial gain that you/your parents would
realize if a well pad would be sited on your parents’ property would not be de minimis.
It is further initially noted that, pursuant to the same aforesaid Sections of the
Ethics Act, 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 Township Supervisor, 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
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
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October 31, 2014
Page 3
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.
65 Pa.C.S. § 1102.
Subject to the statutory exclusions to the Ethics Act’s definition of the term
“conflict” or “conflict of interest,” 65 Pa.C.S. § 1102, 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.
Per the Pennsylvania Supreme Court’s decision in Kistler v. State Ethics
Commission, 610 Pa. 516, 22 A.3d 223 (2011), in order to violate Section 1103(a) of the
Ethics Act, a public official/public employee:
… must act in such a way as to put his \[office/public position\]
to the purpose of obtaining for himself a private pecuniary
benefit. Such directed action implies awareness on the part
of the \[public official/public employee\] of the potential
pecuniary benefit as well as the motivation to obtain that
benefit for himself.
Kistler, supra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics
Act, a public official/public employee “must be consciously aware of a private pecuniary
benefit for himself, his family, or his business, and then must take action in the form of
one or more specific steps to attain that benefit.” Id., 610 Pa. at 528, 22 A.3d at 231.
Having established the above general principles, you are advised as follows.
Your parents are members of your “immediate family” as that term is defined in
the Ethics Act. 65 Pa.C.S. § 1102. Based upon the submitted facts, in your official
capacity as a Township Supervisor, you would have a conflict of interest pursuant to
Section 1103(a) of the Ethics Act with regard to the conditional use application involving
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October 31, 2014
Page 4
your parents’ farm, and you would be precluded from voting as to that conditional use
application unless your voting would fall within one of the statutory exceptions of
Section 1103(j) of the Ethics Act. 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 you from voting as to the other Pending Conditional Use
Applications.
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:
As a Supervisor for Loyalsock Township (“Township”), located in
Lycoming 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 submitted facts that: (1) the Township is currently receiving conditional
use applications for gas wells related to the Marcellus Shale gas industry; (2) one
conditional use application was approved, but its approval is currently being appealed;
(3) the Township has received fourteen other conditional use applications (“the Pending
Conditional Use Applications”) for gas wells, including a conditional use application for a
well site on your parents’ farm; (4) you stand to realize a financial gain if a well pad
would be sited on your parents’ property; and (5) you and your wife live on property you
purchased from your parents, and you currently do not have any leases with the gas
industry, you are advised as follows.
Your parents are members of your “immediate family” as that term is defined in
the Ethics Act. 65 Pa.C.S. § 1102. Based upon the submitted facts, in your official
capacity as a Township Supervisor, you would have a conflict of interest pursuant to
Section 1103(a) of the Ethics Act with regard to the conditional use application involving
your parents’ farm, and you would be precluded from voting as to that conditional use
application unless your voting would fall within one of the statutory exceptions of
Section 1103(j) of the Ethics Act. 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 you from voting as to the other Pending Conditional Use
Applications. 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,
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October 31, 2014
Page 5
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