HomeMy WebLinkAbout14-560 Zipko
ADVICE OF COUNSEL
December 12, 2014
Marie Zipko
729 Berry Road
Washington, PA 15301
14-560
Dear Ms. Zipko:
This responds to your letter dated October 16, 2014, and your submission
received November 4, 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 an individual who
is serving as both a township supervisor and a member of the township planning
commission with regard to participating in matter(s) involving the
establishment/amendment of a township ordinance regulating oil and gas drilling or in
matter(s) involving applications for drilling on land in the township that is not owned by
the individual, where: (1) the current township oil and gas ordinance permits drilling as a
conditional use in R2 zoning districts; (2) one of the proposed amendments to the
township oil and gas ordinance would delete drilling as a conditional use in R2 zoning
districts; (3) the individual is one of the owners of a family farm located in an R2 zoning
district in the township; (4) the owners of the family farm have been contacted by the
gas industry and have engaged in negotiations with regard to a gas lease; and (5) the
individual might profit if the owners of the family farm would enter into a gas lease with
the gas industry.
Facts:
You request an advisory from the Pennsylvania State Ethics Commission
based upon submitted facts, the material portion of which may be fairly summarized as
follows.
In January 2014, you took office as a Supervisor for South Strabane Township
(“Township”). You are also a Member of the South Strabane Township Planning
Commission (“Planning Commission”). You state that the Planning Commission is a
purely advisory board.
The Township includes approximately 900 acres of undeveloped property
consisting of lots of 50 acres or more that are located in R2 zoning districts. Most of the
undeveloped property is currently used as farmland.
Zipko, 14-560
December 12, 2014
Page 2
The Township is in the process of considering amendments to the current
Township oil and gas ordinance, which permits drilling as a conditional use in R2 zoning
districts. One of the proposed amendments to the Township oil and gas ordinance
would delete drilling as a conditional use in R2 zoning districts. The Township will soon
develop a new comprehensive plan that could change any or all of the zoning districts.
You are one of the owners (the “Owners”) of a 163-acre family farm (the
“Farm”) that is located in an R2 zoning district in the Township. You state that the
Owners of the Farm have not had a gas lease for over two years. You further state that
the Owners of the Farm have been contacted by the gas industry and have engaged in
negotiations with regard to a gas lease and that you might profit if the Owners of the
Farm would enter into a gas lease with the gas industry.
Based upon the above submitted facts, you pose the following questions:
(1) Whether you would have a conflict of interest in your capacity as a
Member of the Planning Commission with regard to participating in the
establishment/amendment of a Township ordinance dedicated to oil and
gas drilling;
(2) Whether you would have a conflict of interest in your capacity as a
Township Supervisor with regard to participating in the
establishment/amendment of a Township ordinance dedicated to oil and
gas drilling;
(3) Whether you would have a conflict of interest in your capacity as a
Member of the Planning Commission with regard to voting on a Township
oil and gas ordinance to be presented to the Township Board of
Supervisors;
(4) Whether you would have a conflict of interest in your capacity as a
Township Supervisor with regard to voting on a Township oil and gas
ordinance; and
(5) Whether you would have a conflict of interest in your capacity as a
Member of the Planning Commission or in your capacity as a Township
Supervisor with regard to taking action on any applications for drilling on
land in the Township that is not owned by you.
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.
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.
In responding to your inquiry, the threshold question to be addressed is whether,
in your capacity as a Member of the Planning Commission or in your capacity as a
Township Supervisor, you would be considered a public official subject to the provisions
of the Ethics Act.
Zipko, 14-560
December 12, 2014
Page 3
The Ethics Act defines the term "public official" as follows:
§ 1102. Definitions
"Public official."
Any person elected by the public or
elected or appointed by a governmental body or an
appointed official in the executive, legislative or judicial
branch of this Commonwealth or any political subdivision
thereof, provided that it shall not include members of
advisory boards that have no authority to expend public
funds other than reimbursement for personal expense or to
otherwise exercise the power of the State or any political
subdivision thereof.
65 Pa.C.S. § 1102.
In applying the Ethics Act’s definition of the term “public official,” the first portion
of the definition provides that a public official is a “person” (defined to include, inter alia,
an individual or business) which is: (1) elected by the public; (2) elected or appointed by
a governmental body; or (3) an appointed official in the executive, legislative or judicial
branch of the Commonwealth of Pennsylvania or a political subdivision of the
Commonwealth. Muscalus, Opinion 02-007. When the first portion of the definition is
met, status as a public official subject to the Ethics Act is established, unless the
exclusion for members of purely advisory boards is applicable. Eiben, Opinion 04-002.
In applying the definition of "public official" in the instant matter, the necessary
conclusion is that as a Member of the Planning Commission, you would fall within the
statutory exclusion for members of purely advisory boards lacking authority to expend
public funds other than reimbursement for personal expense or to otherwise exercise
the power of the State or a political subdivision. This conclusion is based upon your
factual submission that the Planning Commission is a purely advisory board. Therefore,
based upon the submitted facts, the necessary conclusion is that in your capacity as a
Member of the Planning Commission, you are not a “public official” as that term is
defined in the Ethics Act. Cf., Magaw, Advice 13-514; Magnusson, Advice 09-544;
McGlynn, Advice 08-554.
However, in your capacity as a Township Supervisor, you are a “public official” as
that term is defined in the Ethics Act, and therefore in that capacity you are subject to
the provisions of the Ethics Act. Cf., Fodi, Opinion 14-005; Pavlovic, Opinion 02-005;
Finnerty, Advice 14-554.
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
Zipko, 14-560
December 12, 2014
Page 4
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 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.
"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
Zipko, 14-560
December 12, 2014
Page 5
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.
A conflict of interest would not exist to the extent the “de minimis exclusion”
and/or the “class/subclass exclusion” set forth within the Ethics Act’s definition of the
term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, would be applicable.
The de minimis exclusion precludes a finding of conflict of interest as to an action
having a de minimis (insignificant) economic impact. Thus, when a matter that would
otherwise constitute a conflict of interest under the Ethics Act would have an
insignificant economic impact, a conflict would not exist and Section 1103(a) of the
Ethics Act would not be implicated. See, Kolb, Order 1322; Schweinsburg, Order 900.
In order for the class/subclass exclusion to apply, two criteria must be met: (1)
the affected public official/public employee, immediate family member, or business with
which the public official/public employee or immediate family member is associated
must be a member of a class consisting of the general public or a true subclass
consisting of more than one member; and (2) the public official/public employee,
immediate family member, or business with which the public official/public employee or
immediate family member is associated must be affected "to the same degree" (in no
way differently) than the other members of the class/subclass. 65 Pa.C.S. § 1102; see,
Kablack, Opinion 02-003; Rubenstein, Opinion 01-007. The first criterion of the
exclusion is satisfied where the members of the proposed subclass are similarly
situated as the result of relevant shared characteristics. The second criterion of the
exclusion is satisfied where the individual/business in question and the other members
of the class/subclass are reasonably affected to the same degree by the proposed
action. Kablack, supra.
Having established the above general principles, your specific questions shall
now be addressed.
With regard to your first, third, and fifth questions--to the extent such questions
relate to your conduct as a Member of the Planning Commission--you are advised as
follows. Because, in your capacity as a Member of the Planning Commission, you are
not a “public official” as that term is defined in the Ethics Act, Section 1103(a) of the
Ethics Act (pertaining to conflict of interest) would not apply to restrict you in your
capacity as a Member of the Planning Commission.
With regard to your second, fourth, and fifth questions--to the extent such
questions relate to your conduct as a Township Supervisor--you are advised as follows.
Zipko, 14-560
December 12, 2014
Page 6
You would have a conflict of interest and would violate Section 1103(a) of the
Ethics Act in your official capacity as a Township Supervisor by participating in the
establishment/amendment of a Township ordinance dedicated to oil and gas drilling or
by taking action on application(s) for drilling on land in the Township that is not owned
by you if: (1) you would be consciously aware of a private pecuniary benefit for you, a
member of your immediate family, or a business with which you or a member of your
immediate family is associated; (2) your action(s) would constitute one or more specific
steps to attain that benefit; and (3) neither 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. In each instance of a conflict of interest, you 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.
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:
Based upon the submitted facts that: (1) in January 2014, you took
office as a Supervisor for South Strabane Township (“Township”); (2) you are also a
Member of the South Strabane Township Planning Commission (“Planning
Commission”); (3) the Planning Commission is a purely advisory board; (4) the
Township includes approximately 900 acres of undeveloped property consisting of lots
of 50 acres or more that are located in R2 zoning districts; (5) most of the undeveloped
property is currently used as farmland; (6) the Township is in the process of considering
amendments to the current Township oil and gas ordinance, which permits drilling as a
conditional use in R2 zoning districts; (7) one of the proposed amendments to the
Township oil and gas ordinance would delete drilling as a conditional use in R2 zoning
districts; (8) the Township will soon develop a new comprehensive plan that could
change any or all of the zoning districts; (9) you are one of the owners (the “Owners”) of
a 163-acre family farm (the “Farm”) that is located in an R2 zoning district in the
Township; (10) the Owners of the Farm have not had a gas lease for over two years;
and (11) the Owners of the Farm have been contacted by the gas industry and have
engaged in negotiations with regard to a gas lease, and you might profit if the Owners of
the Farm would enter into a gas lease with the gas industry, you are advised as follows.
In your capacity as a Member of the Planning Commission, you are not a “public
official” as that term is defined in the Public Official and Employee Ethics Act (“Ethics
Act”), 65 Pa.C.S. § 1101 et seq. However, in your capacity as a Township Supervisor,
you are a “public official” as that term is defined in the Ethics Act, and therefore in that
capacity you are subject to the provisions of the Ethics Act.
Because, in your capacity as a Member of the Planning Commission, you are not
a “public official” as that term is defined in the Ethics Act, Section 1103(a) of the Ethics
Act (pertaining to conflict of interest) would not apply to restrict you in your capacity as a
Member of the Planning Commission.
You would have a conflict of interest and would violate Section 1103(a) of the
Ethics Act in your official capacity as a Township Supervisor by participating in the
establishment/amendment of a Township ordinance dedicated to oil and gas drilling or
by taking action on application(s) for drilling on land in the Township that is not owned
by you if: (1) you would be consciously aware of a private pecuniary benefit for you, a
member of your immediate family, or a business with which you or a member of your
immediate family is associated; (2) your action(s) would constitute one or more specific
steps to attain that benefit; and (3) neither of the statutory exclusions to the definition of
Zipko, 14-560
December 12, 2014
Page 7
"conflict" or "conflict of interest" as set forth in the Ethics Act, 65 Pa.C.S. § 1102, would
be applicable. In each instance of a conflict of interest, you 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. 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