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HomeMy WebLinkAbout18-516 O'KeefePHONE: 717- 783 -1610 TOLL FREE: 1- 800 -932 -0936 ADVICE OF COUNSEL March 19, 2018 To the Requester: Mr. T. Maxwell O'Keefe, Esquire Lamb McErlane PC Dear Mr. O'Keefe: FACSIMILE: 717 -787 -0806 WEBSITE: www.ethics.pa.gov 18 -516 This responds to your letters dated January 12, 2018,. and January 24, 2018,.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 1�a TS. § 1101 et seq., would impose prohibitions or restrictions upon any of hree township supervisors with regard to voting on certain matters pertaining to two fire departments and the provision of fire and emergency services to the township where: (1) two of the township supervisors are officers of one or the other of the fire departments; and (2) the third township supervisor is a member but not an officer of one of the fire departments. Facts: As Solicitor for Sadsbury Township Zwonship wnship "), located in Chester oun y, Pennsylvania, you have been authorized by Supe rvisors John Moore ( "Mr. Moore "), David Reynolds ( "Mr. Reynolds "), and Earl Taylor ( "Mr. Taylor ") to request an advisory from the Commission on their behalf. You have submitted facts that may be fairly summarized as follows. In or about November 2012, an Intergovernmental Cooperation Agreement (the "ICA") was entered into by four municipalities, including the Township (collectively, the "Member Municipalities "). The ICA established a regional fire and emergency services response district known as the "Keystone Valley Regional Fire District" the "Fire District"). The Member Municipalities agreed to participate as members off the Fire District for a five -year term. In or about July 2015, the Fire District entered into an agreement (the "Agreement ") with the Keystone Valley Fire Department for the provision of fire and emergency services to the Fire District. Pursuant to the Agreement, the Fire District agreed to provide the necessary financial support for the Keystone Valley Fire Department as appropriated by the Member Municipalities and to purchase all equipment necessary for the Keystone Valley Fire Department to perform its responsibilities under the Agreement. In 2017, the Township exercised its right under the ICA to withdraw from the ICA as of November 20, 2017. As a result of withdrawing from the ICA, the Township is entitled to its proportionate share of the assets and property of the Fire District. You O'Keefe, 18 -516 a� _f9, 2018 Page 2 state that a decision by the Township to recover its proportionate share could result in a loss of assets by the Keystone Valley Fire Department, whereas a decision by the Township to abandon its proportionate share could benefit the Keystone Valley Fire Department. On November 8, 2017, the Township ,Board of Supervisors ( "Board of Supervisors ") passed a resolution (the "Resolution) that designated the Sadsburyville Fire Department as the sole ' ovider of emergency fire and rescue services to the Township. The Resolution did not designate a specific provider of ambulance or emergency medical services to the Township but instead implemented a Chester County system that would dispatch the closest available ambulance from any service provider. The Resolution did not allocate or earmark funds to any particular entity. The Keystone Valley Fire Department and the Sadsburyville Fire Department have submitted proposed service contracts to the Township. In 2018, the Board of Supervisors may choose to enter into service contracts with the Keystone Valley Fire Department and/or the Sadsburyville Fire Department for the provision of fire and/or ambulance and emergency services to the Township. The Township typically designates funds in its annual budget to fund fire departments that provide fire and/or ambulance and emergency services to the Township. The Township annual budget does not specify which fire departments are to receive the designated funds. The Board of Supervisors is considering levying a tax to generate revenue to pay for fire services for the Township (the "Fire Services Tax "). The Board of Supervisors is also considering levying a tax to generate revenue to pay for ambulance, rescue, and other emergency services for the Township (the "Emergency Services Tax "). The Fire Services Tax and the Emergency Services Tax would each generate revenue that would be generally earmarked for the provision of the particular services and would not be allocated to any specific provider of those services. Mr. Taylor is the Second EMS Lieutenant and a designated Ambulance Officer of the Keystone Valley Fire Department. Mr. Moore is a member but not an officer of the Keystone Valley Fire Department, Mr. Reynolds is the Assistant Chief and a designated officer of the Sadsburyville Fire Department. You state that the Keystone Valley Fire Department and the Sadsburyville Fire Department are not owned or operated by the Township and are not considered part of the Township. Based upon the above submitted facts, you pose the following questions: (1) Whether Mr. Taylor or Mr. Moore would have a conflict of interest with regard to voting on the issue of whether the Township should exercise its right to recover its proportionate share of the Fire District's assets and property; (2) Whether Mr, Taylor, Mr. Moore, or Mr. Reynolds would have a conflict of interest with regard to voting on a Township resolution to levy the Fire Tax or a Township resolution to levy the Emergency Services Tax; (3) Whether Mr. Taylor or Mr. Moore would have a conflict of interest with regard to voting on a service contract with the Keystone Valley Fire Department; (4) Whether Mr. Reynolds would have a conflict of interest with regard to voting on a service contract with the Sadsburyville Fire Department; and (5) Whether Mr. Taylor, Mr. Moore, or Mr. Reynolds would have a conflict of interest with regard to voting on an annual Township budget that would O'Keefe, 18 -516 aF'T9, 2018 Page 3 designate funds for fire departments in general and would not specify which particular fire departments would receive such funds. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the ics 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 disc osed 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. As Township Supervisors, Mr. Moore, Mr. Reynolds, and Mr. Taylor 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 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), 0). The following terms related to Section 1103(a) are defined in the Ethics Act as follows: O'Keefe, 18516 al�i�T9, 2018 Page 4 § 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 he performance of duties and responsibilities unique to a particular public office or position of public employment. "Business." An corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 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. In each instance of a conflict of interest, the public official /public employee would be required to abstain from participation. The abstention requirement would not be limited merely to voting, but would extend 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. Subject to certain statutory exceptions, in each instance of a voting co^ n Section 11030) of the Ethics Act would require the public official /public employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes. 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 tt � ics;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 O'Keefe, 18 -516 lQf cFi �9, 2018 Page 5 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 officiallpublic 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 ember is associated must be affected "to the same degree" (in no wag differently) than the other members of the class /subclass. 65 Pa.C.S. 1102; see, Ka lack, Opinion 02-003; Rubenstein, Opinion 01 -007. The first criterion of the excl on 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 individuallbusiness in question and the other members of the class/subclass are reasonably affected to the same degree by the proposed action. Kablack, supra. In ap lying the above provisions of the Ethics Act to the instant matter, you are advised as follows. Regarding Mr._ Moore; Based upon the submitted facts, the Keystone Valley Fire Department is not a business with which Mr. Moore is associated because he is not a director, officer, owner, employee, or holder of a financial interest in the Keystone Valley Fire Department. Since the Keystone Valley Fire Department is not a business with which Mr. Moore is associated, he would not have a conflict of interest under Section 1103(a) of the Ethics Act in matter(s) before the Board of Supervisors that would financially impact the Keystone Valley Fire Department but that would not financially impact him, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Absent some basis for a conflict of interest such as a private pecuniary benefit to Mr. Moore, a member of his immediate family, or a business with which he or a member of his immediate family is associated, Mr. Moore would not have a conflict of interest under Section 1103(a) of the Ethics Act in his capacity as a Township Supervisor with regard to voting on: (1) the issue of whether the Township should exercise its right to recover its proportionate share of the Fire District's assets and property; (2) a Township resolution to levy the Fire Tax or a Township resolution to levy the Emergency Services Tax; (3) a service contract with the Keystone Valley Fire Department; or (4) an annual Township budget that would designate funds for fire departments in general and would not specify which particular fire departments would receive such funds. O'Keefe, 18 -516 March 19, 2018 Page 6 Reaardina Mr. Tavlor: The Keystone Valley Fire Department is a business with which Mr. Taylor is associated in his capacities as the Second EMS Lieutenant and a designated Ambulance Officer. Mr. Taylor generally would have a conflict of interest under Section 1103(a) of the Ethics Act as a Township Supervisor in matter(s) that would financially impact the Keystone Valley Fire Department. Mr. Taylor specifically would have a conflict of interest with regard to voting to approve a service contract with the Keystone Valley Fire Department, Mr. Taylor would also have a conflict of interest with regard to voting to eliminate competitor(s) for service contract(s) with the Township. Cf., Pepper, Opinion 87 -008. Mr. Taylor would further have a conflict of interest with regard to voting on: (1) the issue of whether the Township should exercise its ri ht to recover its proportionate share of the Fire District's assets and property; (2) a Township resolution to levy the Fire Tax or a Township resolution to levy the Emergency Services Tax; or (3 ) an annual Township budget that would designate funds for fire departments in general and would not specify which particular fire departments would receive such funds, if: (a) he would be consciously aware of a private pecuniary benefit for himself or the Keystone Valley Fire Department; (b) his action(s) would constitute one or more specific steps to attain that benefit; and (cneither 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. Cf. Kistler, supra. Regarding Mr. Reynolds: The Sadsburyville Fire Department is a business with which Mr. Reynolds is associated in his capacities as the Assistant Chief and a designated officer. Mr. Reynolds generally would have a conflict of interest as a Township Supervisor in matter(s) that would financially impact the Sadsburyville Fire Department. Mr. Reynolds specifically would have a conflict of interest with regard to voting to approve a service contract with the Sadsburyville Fire Department. Mr. Reynolds would also have a conflict of interest with regard to voting to eliminate competitor(s) for service contract(s) with the Township. Cf., Pepper, s, upra. Mr. Reynolds would further have a conflict of interest with regard to votingg on: 1) a Township resolution to lev the Fire Tax or a Township resolution to lev t e Emergency Services Tax; or (2� an annual Township budget that would designate funds for fire departments in general and would not specify which particular fire departments would receive such funds, if: (a) he would be consciously aware of a private ecuniary benefit for himself or the Sadsburyville Fire Department; (b) his action(s) would constitute one or more specific steps to attain that benefit; and (c) 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. Cf. Kistler, supra. Regarding All Three Township Supervisors_ In each instance of a conflict of interest, the Township Supervisor(s) with the conflict of interest 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. 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 O'Keefe, 18 -516 0101 —rcPb, 2018 Page 7 interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the Second Class Township Code. Conclusion: As Supervisors for Sadsbury Township ( "Townshi "), located in Chester ounty, Pennsylvania, John Moore (` Mr. Moore "), David Reynolds ( "Mr. Reynolds "), and Earl Taylor'( "Mr. Taylor ") are ublic officials subject to the provisions of the Public Official and Employee Ethics Act "Ethics Act "), 65 Pa.C.S. § 1101 et sec.. Based upon the submitted facts that: (1) in or about November 20'x, an Intergovernmental Cooperation Agreement (the "ICA ") was entered into by four municipalities, including the Township (collectively, the "Member Municipalities "); (2) the ICA established a regional fire and emergency services response district known as the "Keystone Valley Regional Fire District (the Fire District"); (3) the Member Municipalities agreed to participate as members of the Fire District for a five -year term; (4) in or about July 2015, the Fire District entered into an agreement (the "Agreement ") with the Keystone Valley Fire Department for the provision of fire and emergency services to the Fire District; (5) pursuant to the Agreement, the Fire District agreed to provide the necessary financial support for the Keystone Valley Fire Department as appropriated by the Member Municipalities and to purchase all equipment necessary for the Keystone Valley Fire Department to perform its responsibilities under the Agreement; (6) in 2017, the Township exercised its right under the ICA to withdraw from the ICA as of November 20, 2017; (7) as a result of withdrawing from the ICA, the Townshipp is entitled to its proportionate share of the assets and property of the Fire District; (8) a decision by the Township to recover its proportionate share could result in a loss off assets by the Keystone Valley Fire Department, whereas a decision by the Township to abandon its proportionate share could benefit the Keystone Valley Fire Department; (9) on November 8, 2017, the Township Board of Supervisors ("Board of Supervisors ") passed a resolution (the "Resolution ") that designated the Sadsburyville Fire Department as the sole prodder of emergency fire and rescue services to the Township; (10) the Resolution did not designate a specific provider of ambulance or emergency medical services to the Township but instead implemented a Chester County system that would dispatch the closest available ambulance from any service provider; (11) the Resolution did not allocate or earmark funds to any particular entity; (12) the Keystone Valley Fire Department and the Sadsburyville Fire Department have submitted proposed service contracts to the Township; 13) in 2018, the Board of Supervisors may choose to enter into service contracts with the Keystone Valley Fire Department and/or the Sadsburyville Fire Department for the provision of fire and/or ambulance and emergency services to the Township; (14) the Township typically designates funds in its annual budget to fund fire departments that provide fire and/or ambulance and emergency services to the Township; (15) the Township annual budget does not specify which fire departments are to receive the designated funds; (16) the Board of Supervisors is considering levying a tax to generate revenue to pay for fire services for the Township (the "Fire Services Tax "); (17) the Board of Supervisors is also considering levying a tax to generate revenue to pay for ambulance, rescue, and other emergency services for the Township (the "Emergency Services Tax "); (18) the Fire Services Tax and the Emergency Services Tax would each generate revenue that would be generally earmarked for the provision of the particular services and would not be allocated to any specific provider of those services; (19) Mr. Taylor is the Second EMS Lieutenant and a designated Ambulance Officer of the Keystone Valley Fire Department 20) Mr. Moore is a member but not an officer of the Keystone Valley Fire Department; ((21) Mr. Reynolds is the Assistant Chief and a designated officer of the Sadsburyville Fire Department; and (22) the Keystone Valley Fire Department and the Sadsburyville Fire Department are not owned or operated by the Township and are not considered part of the Township, you are advised as follow. Regarding Mr. Moore: Based upon the submitted facts, the Keystone Valley Fire Department is not a business with which Mr. Moore is associated because he is not a director, officer, owner, employee, or holder of a financial interest in the Keystone Valley Fire O'Keefe, 18 -516 a�9, 2018 Page 8 Department. Since the Keystone Valley Fire Department is not a business with which Mr. Moore is associated, he would not have a conflict of interest under Section 1103(a) of the Ethics Act in matter(s) before the Board of Supervisors that would financially impact the Keystone Valley ire Department but that would not financially impact him, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Absent some basis for a conflict of interest such as a private pecuniary benefit to Mr. Moore, a member of his immediate family, or a business with which he or a member of his immediate family is associated, Mr. Moore would not have a conflict of interest under Section 1103(a) of the Ethics Act in his capacity as a Township Supervisor with regard to voting on: (1) the issue of whether the Township should exercise its right to recover its proportionate share of the Fire District's assets and property; (2) a Township resolution to levy the Fire Tax or a Township resolution to levy the Emergency Services Tax; (3) a service contract with the Keystone Valley Fire Department; or (4) an annual Township budget that would designate funds for fire departments in general and would not specify which particular fire departments would receive such funds. Regarding Mr. Taylor: The Keystone Valley Fire Department is a business with which Mr. Taylor is associated in his capacities as the Second EMS Lieutenant and a designated Ambulance Officer. Mr. Taylor generally would have a conflict of interest under Section 1103(a) of the Ethics Act as a Township Supervisor in matter(s) that would financially impact the Keystone Valley Fire Department. Mr. Taylor specifically would have a conflict of interest with regard to voting to approve a service contract with the Keystone Valley Fire Department. Mr. Taylor would also have a conflict of interest with regard to voting to eliminate competitor(s) for service contract(s) with the Township. Mr. Taylor would further have a conflict of interest with regard to voting on: (1) the issue of whether the Township should exercise its right to recover its proportionate share of the Fire District's assets and property; (2) a Township resolution to levy the Fire Tax or a Township resolution to levy the Emergency Services Tax; or (3 ) an annual Township budget that would designate funds for fire departments in general and would not specify which particular fire departments would receive such funds, if: (a) he would be consciously aware of a private pecuniary benefit for himself or the Keystone Valley Fire Department; (b) his action(s) would constitute one or more specific steps to attain that benefit; and (c ) 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. Regarding Mr. Reynolds: The Sadsburyville Fire Department is a business with which Mr. Reynolds is associated in his capacities as the Assistant Chief and a designated officer. Mr. Reynolds generally would have a conflict of interest as a Township Supervisor in matter(s) that would financially impact the Sadsburyville Fire Department. Mr. Reynolds specifically would have a conflict of interest with regard to voting to approve a service contract with the Sadsburyville Fire Department. Mr. Reynolds would also have a conflict of interest with regard to voting to eliminate competitor(s) for service contract(s) with the Township. Mr. Reynolds would further have a conflict of interest with regard to votingg on: (1) a Township resolution to levy he Fire Tax or a Township resolution to iev the Emergency Services Tax, or (2) an annual Township budget that would designate funds for fire departments in general and would not specify which particular fire departments would receive such funds, if: (a) he would be consciously aware of a private pecuniary benefit for himself or the Sadsburyville Fire Department; (b) his action(s) would constitute one or more specific steps to attain that benefit; and (c) neither the de O'Keefe, 18 -516 WTEFT9, 2018 Page 9 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. Regarding All Three Township Supervisors: In each instance of a conflict of interest, the Township Supervisor(s) with the conflict of interest 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. 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 writingg 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, { Robin M. Hittie Chief Counsel