HomeMy WebLinkAbout15-521 Korns
ADVICE OF COUNSEL
March 18, 2015
Michael T. Korns, Esquire
Avolio Law Group, LLC
117 N. Main Street
Greensburg, PA 15601
15-521
Dear Mr. Korns:
This responds to your letter dated February 12, 2015, 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: (1) proposed revisions to the township zoning
ordinance and the township zoning map which contain provisions for oil and gas
exploration and extraction by the use of conventional and unconventional wells; or (2)
conditional use applications for the removal of oil or gas from properties in area(s)
where properties owned by the township supervisor and his wife are located, when the
township supervisor and his wife have oil and gas leases for their properties.
Facts:
As Solicitor for the Township of Ligonier (“Township”), located in
Westmoreland County, Pennsylvania, you have been authorized by Township
Supervisor Wade E. Thomas (“Mr. Thomas”) to request an advisory from the
Pennsylvania State Ethics Commission on his behalf. You have submitted facts that
may be fairly summarized as follows.
The Township is governed by a five-Member Board of Supervisors (“Board of
Supervisors”). Mr. Thomas’ current term of office as a Township Supervisor began in
January 2015, and he previously served as a Township Supervisor from 1988 to 1994.
Pursuant to the Pennsylvania Municipalities Planning Code, the Township is
preparing and formulating comprehensive revisions to the Township Zoning Ordinance
(“Zoning Ordinance”) and the Township Zoning Map (“Zoning Map”). The proposed
revisions were prepared by the Township Planning Commission, a Zoning Committee
appointed by the Township, Township staff, and you as Solicitor.
The proposed revisions to the Zoning Ordinance and Zoning Map contain
provisions for oil and gas exploration and extraction by the use of conventional and
unconventional wells. Pursuant to the proposed revisions, the Zoning Ordinance and
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March 18, 2015
Page 2
Zoning Map would provide for oil and gas operations in certain districts. The Zoning
Ordinance would also provide that oil and gas exploration may be permitted in certain
districts subject to a conditional use approval being granted by the Board of
Supervisors. The Board of Supervisors may adopt the proposed comprehensive
revisions to the Zoning Ordinance and the Zoning Map after holding a public hearing at
which citizens may make comments.
Mr. Thomas and his wife, Kimberly C. Thomas, have three oil and gas leases
with XTO Energy for properties in the Township. The properties owned by Mr. Thomas
and his wife are located within those areas in the Township in which the drilling of
conventional or unconventional wells may take place subject to the requirements of the
Zoning Ordinance.
Based upon the above submitted facts, you pose the following questions:
(1) Whether Mr. Thomas would be permitted to vote on the proposed
comprehensive revisions to the Zoning Ordinance and Zoning Map; and
(2) Whether Mr. Thomas may participate in, or should recuse himself from,
voting on any conditional use application for the removal of oil or gas from
any properties in area(s) where the properties of Mr. Thomas and/or his
wife are located.
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.
As a Township Supervisor, Mr. Thomas 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
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
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March 18, 2015
Page 3
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.
"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. Thus, a public official’s
participation in negotiations, meetings, discussions, deliberations, written and electronic
communications, and/or vote(s) may satisfy the element of “use of authority of office.”
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.
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March 18, 2015
Page 4
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, you are advised as follows.
Mr. Thomas’ wife is a member of his “immediate family” as that term is defined in
the Ethics Act. Mr. Thomas would have a conflict of interest and would transgress
Section 1103(a) of the Ethics Act in his official capacity as a Township Supervisor by
voting on the proposed comprehensive revisions to the Zoning Ordinance and Zoning
Map or on conditional use application(s) for the removal of oil or gas from property(ies)
in area(s) where the properties of Mr. Thomas and/or his wife are located if: (1) Mr.
Thomas would be consciously aware of a private pecuniary benefit for himself, a
member of his immediate family such as his wife, or a business with which he or a
member of his immediate family is associated; (2) his official action(s) would constitute
one or more specific steps to attain that benefit; (3) neither the de minimis exclusion nor
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; and (4) his
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March 18, 2015
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voting would not fall within either of the statutory exceptions of Section 1103(j) of the
Ethics Act.
The submitted facts do not enable a conclusive determination as to whether the
de minimis exclusion or the class/subclass exclusion would be applicable as to any
potential financial impact upon Mr. Thomas or his wife.
As noted above, in each instance of a conflict of interest, Mr. Thomas 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:
As a Supervisor for the Township of Ligonier (“Township”), located
in Westmoreland County, Pennsylvania, Wade E. Thomas (“Mr. Thomas”) 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
is governed by a five-Member Board of Supervisors (“Board of Supervisors”); (2) Mr.
Thomas’ current term of office as a Township Supervisor began in January 2015, and
he previously served as a Township Supervisor from 1988 to 1994; (3) pursuant to the
Pennsylvania Municipalities Planning Code, the Township is preparing and formulating
comprehensive revisions to the Township Zoning Ordinance (“Zoning Ordinance”) and
the Township Zoning Map (“Zoning Map”); (4) the proposed revisions were prepared by
the Township Planning Commission, a Zoning Committee appointed by the Township,
Township staff, and the Township Solicitor; (5) the proposed revisions to the Zoning
Ordinance and Zoning Map contain provisions for oil and gas exploration and extraction
by the use of conventional and unconventional wells; (6) pursuant to the proposed
revisions, the Zoning Ordinance and Zoning Map would provide for oil and gas
operations in certain districts; (7) the Zoning Ordinance would also provide that oil and
gas exploration may be permitted in certain districts subject to a conditional use
approval being granted by the Board of Supervisors; (8) the Board of Supervisors may
adopt the proposed comprehensive revisions to the Zoning Ordinance and the Zoning
Map after holding a public hearing at which citizens may make comments; (9) Mr.
Thomas and his wife, Kimberly C. Thomas, have three oil and gas leases with XTO
Energy for properties in the Township; and (10) the properties owned by Mr. Thomas
and his wife are located within those areas in the Township in which the drilling of
conventional or unconventional wells may take place subject to the requirements of the
Zoning Ordinance, you are advised as follows.
Mr. Thomas’ wife is a member of his “immediate family” as that term is defined in
the Ethics Act. Mr. Thomas would have a conflict of interest and would transgress
Section 1103(a) of the Ethics Act in his official capacity as a Township Supervisor by
voting on the proposed comprehensive revisions to the Zoning Ordinance and Zoning
Map or on conditional use application(s) for the removal of oil or gas from property(ies)
in area(s) where the properties of Mr. Thomas and/or his wife are located if: (1) Mr.
Thomas would be consciously aware of a private pecuniary benefit for himself, a
member of his immediate family such as his wife, or a business with which he or a
member of his immediate family is associated; (2) his official action(s) would constitute
one or more specific steps to attain that benefit; (3) neither the de minimis exclusion nor
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; and (4) his
voting would not fall within either of the statutory exceptions of Section 1103(j) of the
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March 18, 2015
Page 6
Ethics Act. The submitted facts do not enable a conclusive determination as to whether
the de minimis exclusion or the class/subclass exclusion would be applicable as to any
potential financial impact upon Mr. Thomas or his wife.
In each instance of a conflict of interest, Mr. Thomas 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