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HomeMy WebLinkAbout18-544 MaddrenPHONE: 717- 783 -1610 TOLL FREE: 1- 800 - 932 -0936 ADVICE OF COUNSEL. July 13, 2018 To the Requester: Mr. Michael L. Maddren, Esquire Delaware County Solicitor Dear Mr. Maddren: FACSIMILE: 717- 787 -0806 WEBSITE: www.ethics.pa.gov 18 -544 This responds to your letter dated June 13, 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 7a C-S. § 1101 et seq., would impose prohibitions or restrictions upon a Member and Chairman of Delaware County Council "County Council ") with regard to participating in deliberations or votes of County Council on matters pertaining to the potential engagement of a third -party contractor to conduct a hazards analysis of pipelines running through Delaware County ( "County "), where: (1) the individual, in his private capacity as an attorney, is employed as an associate with a law firm that performs work for Sunoco Pipeline, L.P. ( Sunoco ), and (2) Sunoco owns two pipelines that would be included in the hazards analysis. Facts: You have been authorized by John P. McBlain ( "Mr. McBlain "), who is a M-e-m-Ber and Chairman of County Council, to request an advisory from the Commission on his behalf. You have submitted facts that may be fairly summarized as follows. County Council is considering whether to engage a third -party contractor to conduct a hazards analysis ( "Hazards Analysis ") of pipelines running through the County. A Hazards Analysis would include and may focus on the Mariner East 1 pipeline and the Mariner East 2 pipeline. Sunoco owns and operates the Mariner East 1 pipeline. Sunoco also owns and will operate the Mariner East 2 pipeline, which is currently under construction. In a private capacity, Mr. McBlain is an attorney licensed to practice law in Pennsylvania. Mr. McBlain Is employed as an associate with the law firm of Swartz Campbell LLC (the "Law Firm "), which performs services for Sunoco. Mr. McBlain does not personally perform any legal services for Sunoco, and his compensation would not be affected regardless of whether Sunoco would remain a client of the Law Firm. Based upon the above submitted facts, you ask whether the Ethics Act would permit Mr. McBlain to participate in deliberations or votes of County Council on the Issue of whether the County should engage a third - -party contractor to conduct a Hazards Analysis and related matters such as the scope of a Hazards Analysis and the identification of a third -party contractor. Maddren, 18 -544 July 13, 2018 Page 2 Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of e 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 Member and Chairman of County Council, Mr. McBlain is a public official 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. 0) 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: § 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 Maddren, 18 -544 July 13, 2018 Page 3 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. "Business. " Any 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 officiallpublic employee is prohibited from using the authority of public officelemployment or confidential information received by 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. In each instance of a conflict of interest, the pubic 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 coffin iEt, 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 11 03 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 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. Maddren, 18 -544 July 13, 2018 Page 4 Having established the above general principles, you are advised as follows. The Law Firm is a business with which Mr. McBlain is associated in his capacity as an employee. Mr. McBlain would have a conflict of interest under Section 1103(x) of the Ethics Act with regard to participating in deliberation(s) or vote(s) of County Council on the issue of whether the County should engage a third -party contractor to conduct a Hazards Analysis or related matter(s) such as the scope of a Hazards Analysis and the identification of a third -party contractor if: (1) he would be consciously aware of a private pecuniary benefit for himself or the Law Firm; 2 his action(s) would constitute one or more specific steps to attain that benefit; and (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. Cf. Kistler, supra. As noted above, in each instance of a conflict of interest, Mr. McBlain 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 interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the Delaware County Home Rule Charter or the Rules of Professional Conduct. Conclusion: As a Member and Chairman of Delaware County Council ( "County ounce , Tohn P. McBlain ( "Mr. McBlain ") is a public official subPact]t`S the provisions of the Pub is Official and Employee Ethics Act ( "Ethics Act "), 65 . § 1101 et sec.. Based upon the submitted facts that: (1) County Council is considering whetTer to engage a third -party contractor to conduct a hazards analysis ( "Hazards Analysis ") of pipelines running through Delaware County ( "County "); (2) a Hazards Analysis would include and may focus on the Mariner East 1 pipeline and the Mariner East 2 pipeline; (3) Sunoco Pipeline, L.P. ( "Sunoco ") owns and operates the Mariner East 1 pipeline; {4) SSunoco also owns and will operate the Mariner East 2 pipeline, which is currently under construction; (5) in a rivate capacity, Mr. McBlain is an attorney licensed to practice law in Pennsylvania; (6) Mr. McBlain is employed as an associate with the law firm of Swartz Campbell LLC (the "Law Firm "), which performs services for Sunoco; and (7) Mr. McBlain does not personally perform any legal services for Sunoco, and his compensation would not be affected regardless of whether Sunoco would remain a client of the Law Firm, you are advised as follows. The Law Firm is a business with which Mr. McBlain is associated in his capacity as an employee. Mr. McBlain would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in deliberation(s) or vote(s) of County Council on the issue of whether the County should engage a third --party contractor to conduct a Hazards Analysis or related matter(s) such as the scoppe of a Hazards Analysis and the identification of a third -party contractor if: (1) he would conscious )y aware of a private pecuniary benefit for himself or the Law Firm; 2 his action(s) would constitute one or more specific steps to attain that benefit; and (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. In each instance of a conflict of interest, Mr. McBlain 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. Maddren, 18 -544 July 13, 2018 Page 5 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 actually received at the Commission within thirty (30) days of the date oftth s Advice pursuant to 51 Pa. Code § T3.2(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 Me such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sinc ely, t Robin M. Hittie Chief Counsel