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HomeMy WebLinkAbout14-553 Varano ADVICE OF COUNSEL November 10, 2014 Samuel Varano Lori Sniezek Greg Carna Pulaski Township Board of Supervisors Lawrence County 1172 State Route 208 Pulaski, PA 16143 14-553 Dear Mr. Varano, Ms. Sniezek, and Mr. Carna: This responds to your letter dated September 29, 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 who has signed an oil and gas lease with an energy company with regard to participating in the proceedings or vote on the energy company’s request for conditional use approval for installation of a well pad on land owned by the township supervisor. Facts: You request an advisory from the Pennsylvania State Ethics Commission based upon the following submitted facts. Each of you is a Supervisor for Pulaski Township (“Township”), located in Lawrence County, Pennsylvania. The Township Board of Supervisors (“Board”) consists of three Members. There is extensive shale gas and oil exploration and production in the Township. Numerous active well sites have been permitted by the Pennsylvania Department of Environmental Protection and approved by the Board as conditional uses under the Township zoning ordinance. Many Township residents have leased the gas and oil rights to their property, and the principal energy company holding these leases is Hilcorp Energy Company (“Hilcorp”) of Houston, Texas. Ms. Sniezek is a full-time employee of Hilcorp. You state that in the past, Ms. Sniezek has recused herself from any participation in any Township zoning hearing involving Hilcorp and has filed a written disclosure of the nature of her interest for inclusion in the transcripts of each Township zoning hearing involving Hilcorp. Varano, Sniezek, and Carna, 14-553 November 10, 2014 Page 2 Mr. Varano and Mr. Carna have each signed an oil and gas lease with Hilcorp. Hilcorp proposes to seek conditional use approval for the installation of a well pad on properties owned by Mr. Varano and Mr. Carna. Hilcorp’s proposal, if approved and permitted, would result in direct financial gain to Mr. Varano and Mr. Carna. You state that Ms. Sniezek will again recuse herself from participating in any proceeding involving Hilcorp, including proceeding(s) involving Hilcorp’s proposal for the properties of Mr. Varano and Mr. Carna. You further state that if Mr. Varano and Mr. Carna recuse themselves from such proceeding(s), the Township will be unable to discharge its statutory duty to hear and rule upon Hilcorp’s request for conditional use approval relative to the properties of Mr. Varano and Mr. Carna. The narrow question that you have posed is whether Mr. Varano and Mr. Carna, after making disclosures under Section 1103(j) of the Ethics Act, would be permitted to participate in the proceedings and vote on Hilcorp’s request for conditional use approval for installation of a well pad on properties owned by Mr. Varano and Mr. Carna. Discussion: 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. It is noted that the submitted facts do not indicate: (1) whether Board action as to a single conditional use application could financially impact both Mr. Varano and Mr. Carna; or (2) whether there would be any potential basis for Mr. Varano or Mr. Carna to have a conflict of interest other than their respective ownership of property included in a conditional use application. This Advice assumes that: (1) factually, a single conditional use application would not financially impact both Mr. Varano and Mr. Carna; and (2) factually, there would be no potential basis for Mr. Varano or Mr. Carna to have a conflict of interest other than their respective ownership of property included in a conditional use application. It is further noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), 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. This Advice is limited to addressing the narrow question posed. As a Township Supervisor, each of you is 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 Varano, Sniezek, and Carna, 14-553 November 10, 2014 Page 3 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 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. 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. Varano, Sniezek, and Carna, 14-553 November 10, 2014 Page 4 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. In addition, Section 1103(b)-(c) of the Ethics Act, 65 Pa.C.S. § 1103(b)-(c), provides in part that no person shall offer or give to a public official/public employee anything of monetary value and no public official/public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official/public employee would be influenced thereby: § 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). Having established the above general principles, you are advised as follows. As to each of the two Township Supervisors who have signed oil and gas leases with Hilcorp (that is, Mr. Varano and Mr. Carna), the Township Supervisor would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to a request by Hilcorp for conditional use approval for installation of a well pad on property owned by that Township Supervisor. Subject to the voting conflict exceptions of Section 1103(j) of the Ethics Act, 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. Per the submitted facts, Ms. Sniezek always recuses herself from Township zoning hearings involving Hilcorp and files disclosure statements as a result of her employment with Hilcorp. When two Board Members would have conflicts of interest with regard to a particular request by Hilcorp for conditional use approval, only the Varano, Sniezek, and Carna, 14-553 November 10, 2014 Page 5 remaining non-conflicted Member could make a motion. 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, 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 the conflict, could then second the motion if he/she 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. Finally, you are advised that pursuant to Sections 1103(a) and 1103(b)-(c) of the Ethics Act, any vote as to the conditional use applications in question must occur without improper influence/understanding(s) between/among the Township Supervisors. 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 or the Rule of Necessity. Conclusion: As a Supervisor for Pulaski Township (“Township”), located in Lawrence County, Pennsylvania, each of you 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) the Township Board of Supervisors (“Board”) consists of three Members; (2) many Township residents have leased the gas and oil rights to their property, and the principal energy company holding these leases is Hilcorp Energy Company (“Hilcorp”) of Houston, Texas; (3) Ms. Sniezek is a full-time employee of Hilcorp; (4) in the past, Ms. Sniezek has recused herself from any participation in any Township zoning hearing involving Hilcorp and has filed a written disclosure of the nature of her interest for inclusion in the transcripts of each Township zoning hearing involving Hilcorp; (5) Mr. Varano and Mr. Carna have each signed an oil and gas lease with Hilcorp; (6) Hilcorp proposes to seek conditional use approval for the installation of a well pad on properties owned by Mr. Varano and Mr. Carna; (7) Hilcorp’s proposal, if approved and permitted, would result in direct financial gain to Mr. Varano and Mr. Carna; (8) Ms. Sniezek will again recuse herself from participating in any proceeding involving Hilcorp, including proceeding(s) involving Hilcorp’s proposal for the properties of Mr. Varano and Mr. Carna; and (9) if Mr. Varano and Mr. Carna recuse themselves from such proceeding(s), the Township will be unable to discharge its statutory duty to hear and rule upon Hilcorp’s request for conditional use approval relative to the properties of Mr. Varano and Mr. Carna, and additionally based upon the assumptions that: (1) factually, a single conditional use application would not financially impact both Mr. Varano and Mr. Carna; and (2) factually, there would be no potential basis for Mr. Varano or Mr. Carna to have a conflict of interest other than their respective ownership of property included in a conditional use application, you are advised as follows. As to each of the two Township Supervisors who have signed oil and gas leases with Hilcorp (that is, Mr. Varano and Mr. Carna), the Township Supervisor would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to a request by Hilcorp for conditional use approval for installation of a well pad on property owned by that Township Supervisor. Subject to the voting conflict exceptions of Section 1103(j) of the Ethics Act, 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. Per the submitted facts, Ms. Sniezek always recuses herself from Township zoning hearings involving Hilcorp and files disclosure statements as a result of her Varano, Sniezek, and Carna, 14-553 November 10, 2014 Page 6 employment with Hilcorp. When two Board Members would have conflicts of interest with regard to a particular request by Hilcorp for conditional use approval, only the remaining non-conflicted Member could make a motion. 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, 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 the conflict, could then second the motion if he/she 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. Finally, you are advised that pursuant to Sections 1103(a) and 1103(b)-(c) of the Ethics Act, any vote as to the conditional use applications in question must occur without improper influence/understanding(s) between/among the Township Supervisors. 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 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