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HomeMy WebLinkAbout24-564 MoorePHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 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 September 23, 2024 To the Requester: Gretchen E. Moore, Esquire Dear Ms. Moore: 24-564 This responds to your letter dated June 11, 2004, and your emails received September 11, 2024, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the issue presented below: Issue: Whether, pursuant to Section 1103(a) of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1103(a), either of two individuals serving as township supervisors would have a conflict of interest with regard to participating in discussions or votes of the township board of supervisors on two ordinances that would affect how oil and gas development may take place in the township, where: (1) one of the individuals receives income from leasing property in the township to a natural gas producer; and (2) the other individual has three stepbrothers who receive income from leasing properties in the township to the same natural gas producer. Brief Answer: NO. Each individual generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters before the township board of supervisors that would financially impact him, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Neither of the two individuals would have a conflict of interest with regard to participating in discussions or votes of the township board of supervisors on the ordinances because: (1) the oil and gas producing properties owned by the first individual would not be impacted by enactment of the ordinances; (2) the second individual's stepbrothers are not members of his "immediate family" as that term is defined by the Ethics Act, and as such, any financial impact upon his stepbrothers as a result of enactment of the ordinances would not form the basis of a conflict of interest for the second individual; and (3) the submitted facts do not indicate that enactment of the ordinances would financially benefit either individual, a member of Moore, 24-564 September 23, 2024 Page 2 either individual's immediate family, or a business with which either individual or a member of his immediate family is associated. Facts: You have been authorized by Thomas Casciola ("Mr. Casciola") and Frank Egizio ("Mr. Egizio") to request an advisory from the Commission on their behalf. You have submitted facts that may be fairly summarized as follows. Mr. Casciola and Mr. Egizio are Supervisors for Cecil Township ("the Township"), located in Washington County, Pennsylvania. The Township Board of Supervisors consists of five Members. The Township Board of Supervisors intends to vote on two ordinances, collectively referred to hereinafter as "the Oil and Gas Ordinances," that would affect how oil and gas development may take place in the Township. One of the Oil and Gas Ordinances would amend the Township Zoning Ordinance to amend the borders of the oil and gas overlay zoning district. The other Oil and Gas Ordinance would amend the Township Zoning Ordinance to add and clarify relevant definitions and to add and clarify conditional use criteria regarding oil and gas development in the Township. The purposes of the Oil and Gas Ordinances are to establish a designated oil and gas overlay zoning district while excluding surface operation in designated areas of the Township and to declare the development of oil and gas as a conditional use within the designated oil and gas overlay zoning district. Since 2021, Mr. Casciola has leased two properties in the Township to Range Resources, which is a natural gas producer. Mr. Casciola receives income averaging $38 every two months for leasing one of the properties to Range Resources. As of June 2024, Mr. Casciola had not received any income for leasing the other property to Range Resources, as the property had not yet been drilled. You state that Mr. Casciola's properties would not be impacted by enactment of the Oil and Gas Ordinances. Mr. Egizio has three stepbrothers who lease properties in the Township to Range Resources. Each of Mr. Egizio's stepbrothers receives royalties from these leases. You ask whether Mr. Casciola or Mr. Egizio would have a conflict of interest with regard to participating in discussions or votes of the Township Board of Supervisors on the Oil and Gas Ordinances. 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. Moore, 24-564 September 23, 2024 Page 3 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), 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 Moore, 24-564 September 23, 2024 Page 4 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. "Immediate family." A parent, spouse, child, brother or sister. "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" (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 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 Township Supervisors, Mr. Casciola and Mr. Egizio are public officials subject to the provisions of the Ethics Act. Mr. Casciola and Mr. Egizio each would generally have a conflict of interest under Section 1103(a) of the Ethics Act in matters that would financially impact him, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Moore, 24-564 September 23, 2024 Page 5 Neither Mr. Casciola nor Mr. Egizio would have a conflict of interest with regard to participating in discussions or votes of the Township Board of Supervisors on the Oil and Gas Ordinances because: (1) the oil and gas producing properties owned by Mr. Casciola would not be impacted by enactment of the Oil and Gas Ordinances; (2) Mr. Egizio's stepbrothers are not members of his "immediate family" as that term is defined by the Ethics Act, and as such, any financial impact upon his stepbrothers as a result of enactment of the Oil and Gas Ordinances would not form the basis of a conflict of interest for him; and (3) the submitted facts do not indicate that enactment of the Oil and Gas Ordinances would financially benefit Mr. Casciola or Mr. Egizio, a member of either individual's immediate family, or a business with which either individual or a member of his 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, Bridget K. Guilfoyle Chief Counsel