HomeMy WebLinkAbout17-573 RacunasSTATE ETHICS COMMISSION
309 FINANCE BUILDING
PO. BOX 11 470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1 -800 -932 -0936
ADVICE OF COUNSEL
October 20, 2017
To the Requester:
Mr. Matthew D. Racunas, Esquire
Dear Mr. Racunas:
This responds to your letter
September 12, 2017, by which you
Ethics Commission ( "Commission ").
17 -573
dated September 7, 2017, and your email received
requested an advisory from the Pennsylvania State
Issue: Whether, pursuant to Section 11 03 a) of the Public Official and Employee
M —= Act ( "Ethics Act "), 65 Pa.C.S. § 1103(a), an attorney serving as a township
solicitor on a retainer basis would have a conflict of interest with regard to providing
legal representation to the township planning commission and the township board of
commissioners in relation to the approval or disapproval of a gas well drilling company's
application for a potential gas well site in the township, where: (1) the pool of properties
for the potential gas well site may include property owned by the attorney and would
include property owned by the attorney's mother -in -law and father -in -law; (2) the
attorney does not own the gas rights to his property, and he would receive no royalty
payments if gas would be extracted from his property; and (3) the attorney's mother-in-
law and father -in -law have leased the gas rights to their property, and they would be
entitled to receive royalty payments if gas. would be extracted from their property.
Facts: You request an advisory from the Commission based upon submitted
acts hat may be fairly summarized as follows.
You serve as the appointed Solicitor for Elizabeth Township ( "Township "), in
which capacity you provide legal representation to the Township Board of
Commissioners and the Township Planning Commission. You are paid a retainer for
your service, and you are not an employee of the Township.
Several deep gas well sites are expected to be developed in the Township in the
near future. You own property in the Township that is expected to be part of the pool of
properties for a potential gas well site ( "the Potential Gas Well Site "). You do not own
the gas rights to your property, and you would receive no royalty payments if gas would
be extracted from your property.
Your mother -in-law and father -in -law (your "In- Laws ") own property in the
Township that will be included in the pool of properties for the Potential Gas Well Site.
Your In -Laws have leased the gas rights to their property, and they would be entitled to
royalty payments if gas would be extracted from their property.
FAX: (717) 787 -0806 & Web Site: www.ethics.state.pa.us • e -mail: ethicsCEDstate.pa.us
Racunas, 17 -573
cto er 20, 2017
Page 2
Under current Township zoning, gas well drilling is a conditional use in all zoning
districts. Gas well drilling companies are required to file applications for gas well sites
and participate in public hearings before the Township Planning Commission and the
Township Board of Commissioners. The Township Planning Commission and the
Township Board of Commissioners are required to vote on whether to approve or
disapprove applications for gas well sites.
Based upon the above submitted facts, you ask whether you would have a
conflict of interest with regard to providing legal representation to the Township
Planning Commission and the Township Board of Commissioners in relation to the
approval or disapproval of a gas well drilling company's application for the Potential Gas
Well Site.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
the Ethics ct, 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.
In responding to your inquiry, the threshold question to be addressed is whether,
in your capacity as the Township Solicitor, you would be considered a public
official /public employee subject to the Ethics Act.
In 1997 and 1999, the status of Solicitors under the Ethics Act was clarified by
certain rulings of the Commonwealth Court of Pennsylvania and the Supreme Court of
Pennsylvania.
In P.J.S. v. State Ethics Commission, 697 A.2d 286 (Pa. Cmwlth. 1997), the
Commonwealth Court of Pennsylvania held, inter alia, that the conflict of interest
provisions of the Ethics Act do apply to solicitors who are public employees and are not
just retained by their client municipalities. The Supreme Court of Pennsylvania
subsequently affirmed the Commonwealth Court's decision in the P.J.S. case. P.J.S. v.
State Ethics Commission, 555 Pa. 149, 723 A.2d 174 (1999).
However, in C.P.C, v. State Ethics Commission, 698 A.2d 155 (Pa. Cmwlth.
1997), alloc. den., 550 Pa. 686, 704 A.2d 640 (19 97 ,based upon an analysis of,prior
precedents, ffie— Commonwealth Court of Pennsylvania determined that a municipal
Solicitor who is retained by —as opposed to being an employee of —the municipality is not
a "public official or public employee" as those terms are defined in the Ethics Act and
therefore is not subject to the conflict of interest provisions of the Ethics Act.
In the instant matter, based upon the submitted facts, you are advised that in
your capacity as the Township Solicitor, you are not a public official /public employee
subject to the Ethics Act, and therefore you are not subject to the restrictions of Section
1103(a) of the Ethics Act (pertaining to conflict of interest).
In response to your specific question, you are advised that Section 1103(a) of the.
Ethics Act --- -which does not apply to you —would not prohibit you from providing legal
representation to the Township Planning Commission and the Township Board of
Commissioners in relation to the approval or disapproval of a gas well drilling
company's application for the Potential Gas Well Site.
It is parenthetically noted that Section 1103(b) of the Ethics Act applies to
everyone. For your information, Sections 1103(b) and 1103(c) of the Ethics Act provide
in part that no person shall offer or give to a public official /public employee anything of
Racunas, 17 -573
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Page 3
monetary value and no public officiallpublic 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. Reference is made
to these provisions of the law not to imply that there has been or will be any
transgression thereof but merely to provide a complete response to the question
presented.
Additionally, all Solicitors are required to file Statements of Financial Interests
pursuant to the Ethics Act. 65 Pa.C.S. § 1104(a); Foster, Opinion 98 -002; see also,
P.J.S., supra (intent of amendment to Section 404, now section 1104, of the Ethics Act
was to include solicitors who are not employees of the governmental units they serve
within the scope of the Ethics Act's financial disclosure provisions).
Lastly, 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 First Class Township Code or the Rules of Professional Conduct.
Conclusion: Based upon the submitted facts that: (1) you serve as the
appointed Solicitor for Elizabeth Township ( "Township "), in which capacity you provide
legal representation to the Township Board of Commissioners and the Township
Planning Commission; (2) you are paid a retainer for your service, and you are not an
employee of the Township; (3) several deep gas well sites are expected to be
developed in the Township in the near future; (4) you own property in the Township that
is expected to be part of the pool of properties for a potential gas well site ( "the Potential
Gas Well Site "); (5) you do not own the gas rights to your property, and you would
receive no royalty payments if gas would be extracted from your pproperty; (6) your
mother -in -law and father -in -law (your "In- Laws ") own propert in the Township that will
be included in the pool of properties for the Potential Gas Well Site,
your In -Laws
have leased the gas rights to their property, and they would be entitled to royalty
payments if gas would be extracted from their pproperty; (8) under current Township
zoning, gas well drilling is a conditional use in all zoning districts; (9) gas well drilling
w
companies are required to file applications for gas well sites and participate in public
hearings before the Township Planning Commission and the Township Board of
Commissioners; and (10) the Township Planning Commission and the Township Board
of Commissioners are required to - vote on whether to approve or disapprove
applications for gas well sites, you are advised as follows.
In your capacity as the Township Solicitor, providing services on a retainer basis,
you are not a public official/public employee subject to the Public Official and Employee
Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1'f 01 et seq., and therefore you are not subject to
the restrictions of Section 1103(a) of the Ethics Act (pertaining to conflict of interest).
Section 1103(x) of the Ethics Act would not prohibit you from providing legal
representation to the Township Planning Commission and the Township Board of
Commissioners in relation to the approval or disapproval of a gas well drilling
company's application for the Potential Gas Well Site. Section 1103(b) of the Ethics Act
applies to everyone, and all Solicitors are required to file Statements of Financial
Interests pursuant to the Ethics Act. 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.
Racunas, 17 -573
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Page 4
Finally, if you disagree with this Advice or if you have any
reason to challenge same, you may appeal the Advice to the fulI
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 actual)
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,
Y�a.
Robin M. Hittie
Chief Counsel