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STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1 -800- 932 -0936
ADVICE OF COUNSEL
December 6, 2016
To the Requester:
Mr. Michael B. Jones, Esquire
McMillen, Urick, Tocci & Jones
Dear Mr. Jones:
16-565
This responds to your letter dated October.13, 2016, by which you requested an
advisory from the Pennsylvania State Ethics Commission ( "Commission ").
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
PAS. § 1101 et se q., would impose prohibitions or restrictions upon Members of the
Board of Supervisors of Potter Township ( "Township "), Beaver County, Pennsylvania,
with regard to receiving compensation for time devoted to matters pertaining to an
ethylene cracker facility that is being constructed in the Township by Shell Chemical
Appalachia, where such compensation would be in excess of the annual maximum
compensation payable to township supervisors pursuant to Section 65606(a) of the
Second Class Township Code, 53 P.S. § 65606(a).
Facts: As Township Solicitor, you have been authorized by Members of the
`township Board of Supervisors (hereinafter referred to as "the Township Supervisors ")
to request an advisory from the Commission based upon submitted facts that may be
fairly summarized as follows.
Shell Chemical Appalachia ( "Shell ") is constructing an ethylene cracker facility
( "the Facility ") in the Township. You state that the Township Supervisors have been
,n aired to devote a substantial amount of time to matters pertaining to the Facility,
including meetings with Shell, Commonwealth agencies and environmental groups and
the review of complex plans with engineers and related litigation with legal counsel.
Each of the Township Supervisors has devoted ten to twelve hours per week on
average to matters pertaining solely to the Facility, which. has been in addition to flours
spent on other Township matters requiring attention.
Based upon the above submitted facts, you ask whether any provision exists by
which the Township Supervisors would be permitted to receive compensation for time
devoted to matters pertaining to the Facility, where such compensation would be in
excess of the annual maximum compensation payable to township supervisors pursuant
to Section 65606(a) of the Second Class Township Code, 53 P.S. & 65606(a), and if so,
what would be the appropriate procedure to follow to allow equitable compensation for
the devotion of such time.
FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethicsCa?state.pa.us
Jones, 16 -565
)i ecer4er 6, 2016
Page 2
Discussion: It is initially oted that pursuant to Sections 1107(10) and 1107(11) of
e tics Act, 65 Pa.C.S. y§§ 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 provisions of the
Ethics Act.
Sections 1103(a) and 11030) 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
pprovided 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 wo 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), 0).
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
Jones, 16 -565
Ueember 6, 2016
Page 3
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
he 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 byy holding such a public position for the private pecuniary benefit
of the public officiallpublic 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 lobbvino 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 11030) of the Ethics Act would be applicable.
Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have
to be satisfied in the event of a voting conflict.
Although the Commission does not have the statutory jurisdiction to interpret the
Second Class Township Code, Section 65606(a) of the Second Class Township Code
must be reviewed in order to consider whether the aforesaid proposed compensation for
time devoted by the Township Supervisors to matters pertaining to the Facility would be
considered a private pecuniary benefit without authorization in law. See, Thompson,
Opinion 99 -005
Section 65606(a) of the Second Class Township Code provides, in pertinent part,
as follows:
§ 65606. Compensation of supervisors
(a) Supervisors may receive as compensation an amount
established by ordinance not in excess of the following:
Township Population
not more than 4,999
5,000 to 9,999
10,000 to 14,999
15,000 to 24,999
25,000 to 34,999
35,000 or more
Annual Maximum Compensation
$1,875
$2,500
$3,250
$4,125
$4,375
$5,000
Jones, 16 -565
>e ber 6, 2016
Page 4
Salaries are payable monthly or quarterly for the duties
imposed by this act.... Any change in salary, compensation
or emoluments of the elected office becomes effective at the
beginning of the next term of the supervisor....
53 P.S. § 65606(a).
On its face, Section 65606(a) of the Second Class Township Code expressly
limits the annual maximum compensation that township supervisors may receive for
performing their duties as township supervisors. If the Township Supervisors would
receive compensation in excess of the annual maximum compensation payable to them
pursuant to Section 65606(a) of the Second Class Township Code for performing their
duties as Township Supervisors— whether with regard to the Facility or otherwise —such
unauthorized/excess compensation would constitute a private pecuniary benefit and
could form the basis for a finding of a violation of Section 1103(a ) of the Ethics Act to
the extent the remaining element of a use of authority of office would occur.
The propriety of the proposed conduct has only been addressed under the Ethics
Act.
Conclusion: Based upon the submitted facts that: (1 Shell Chemical Appalachia
e is ,constructing an ethylene cracker facility ( "the acility") in Potter Township
Township ), located in Beaver County, Pennsylvania; (2) the Members of the
ownship Board of Supervisors on whose behalf you have inquired (hereinafter referred
to as "the Township Supervisors ") have been required to devote a substantial amount of
time to matters pertaining to the Facility, including meetings with Shell, Commonwealth
agencies and environmental groups and the review of complex plans with engineers
and related litigation with legal counsel; and (3) each of the Township Supervisors has
devoted ten to twelve hours per week on average to matters pertaining solely to the
Facility, which has been in addition to hours spent on other Township matters requiring
attention, you are advised as follows.
The Township Supervisors are public officials subject to the provisions of the
Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et se g. On its
.— g76
face, Section 65606(a) of the Second Class Township Code, 53 P.S5606(a),
expressly limits the annual maximum compensation that township supervisors may
receive for performing their duties as township supervisors. If the Township
Supervisors would receive compensation in excess of the annual maximum
compensation payable to them pursuant to Section 65606(a) of the Second Class
Township Code for performing their duties as Township Supervisors— whether with
regard to the Facility or. otherwise —such unauthorizedlexcess compensation would
constitute a private pecuniary benefit and could form the basis for a finding of a violation
of Section 1103(a) of the Ethics Act to the extent the remaining element of a use of
authority of office would occur. Lastly, the propriety of the proposed conduct has only
been addressed under the Ethics Act.
Pursuant to Section 1107(l 1) 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.
Jones, 16 -565
ece ^rnber 6, 2016
Page 5
Any such appeal must be in writing and must be actually
received at the Commission within thirty (30) days of the date othis
vice pursuant to 57 Pa. Code § 73.2(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