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HomeMy WebLinkAbout24-542 BarniPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: Darlene Barni Dear Ms. Barni: STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov ADVICE OF COUNSEL June 3, 2024 24-542 This responds to your submission received May 20, 2024, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the issue presented below: Issue: Facts: Whether, pursuant to Section 1103(a) of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1103(a), an individual serving as a township supervisor would have a conflict of interest with regard to participating in discussions or votes of the township board of supervisors on changes to the township oil and gas ordinance, where the individual receives royalties under leases involving producing wells on approved well sites on property located in the township. Brief Answer: NO. The individual would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in discussions or votes of the township board of supervisors on changes to the township oil and gas ordinance because: (1) under the submitted facts, all current producing wells, including those on approved well sites on the individual's property, would be grandfathered and would not be affected by any changes to the township oil and gas ordinance; and (2) the submitted facts do not indicate that any changes to the township oil and gas ordinance would financially benefit the individual, a member of the individual's immediate family, or a business with which the individual or a member of her immediate family is associated. You request an advisory from the Commission based upon the following submitted facts. Barni, 24-542 June 3, 2024 Page 2 You began serving as a Supervisor for Cecil Township ("the Township") in January 2022. The Township is located in Washington County, Pennsylvania. The Township Board of Supervisors consists of five Members. You own various parcels of property in the Township, and you receive royalties under leases involving producing wells on approved well sites on your property. The leases predate your election to the Township Board of Supervisors. The Township currently has an oil and gas ordinance ("the Oil and Gas Ordinance"). Changes to the Oil and Gas Ordinance may be considered and voted on by the Township Board of Supervisors. You state that changes to the Oil and Gas Ordinance as currently drafted would not affect your leases as it is understood that all current producing wells would be grandfathered and would not be impacted by any changes to the Oil and Gas Ordinance. You ask whether you would have a conflict of interest with regard to participating in discussions or votes of the Township Board of Supervisors on changes to the Oil and Gas Ordinance. Discussion: 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 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 material facts. 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 Barni, 24-542 June 3, 2024 Page 3 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), 11030). 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. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict" or "conflict of interest" (i.e., the "de minimis exclusion" or the "class/subclass exclusion"), 65 Pa.C.S. § 1102, a public official/public employee is prohibited from using the authority of public office or confidential information received by holding such a public position for the private pecuniary (financial) 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. In each instance of a conflict of interest, a public official/public employee would be required to abstain from participation, which would include Bami, 24-542 June 3, 2024 Page 4 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. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As a Township Supervisor, you are a public official subject to the provisions of the Ethics Act. In your capacity as a Township Supervisor, you generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters that would financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. You would not have a conflict of interest with regard to participating in discussions or votes of the Township Board of Supervisors on changes to the Oil and Gas Ordinance because: (1) under the submitted facts, all current producing wells, including those on your property, would be grandfathered and would not be affected by any changes to the Oil and Gas Ordinance; and (2) the submitted facts do not indicate that any changes to the Oil and Gas Ordinance would financially benefit you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. 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. Respectfully, 14 Bridget K. Guilfoyle Chief Counsel