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Home My WebLink About08-518 LYTLERobert S. Lytle 86 Center Alley Homer City, PA 15748 Dear Mr. Lytle: ADVICE OF COUNSEL February 25, 2008 08 -518 This responds to your letter received January 24, 2008, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., would impose any prohibitions or restrictions upon a Surface Mine Conservation Inspector for the Commonwealth of Pennsylvania, Department of Environmental Protection ( "DEP "), as a result of the prospective mining of a property that is partially owned by his spouse, where such property is located outside of his inspection district. Facts: As a Surface Mine Conservation Inspector with DEP, you request an advisory from the Pennsylvania State Ethics Commission. You have submitted a copy of your official Commonwealth position description, which is incorporated herein by reference. A copy of the job classification specifications for your position (job code 71580) has been obtained and is also incorporated herein by reference. You state that you work out of DEP's Cambria Office in Ebensburg, Pennsylvania, and that your inspection district is presently located in Somerset County. As a result of an inheritance, your wife owns twenty -five percent (25 %) of the surface and minerals of a property (hereinafter, "Property ") consisting of approximately 230 acres located in Toby Township, Clarion County, Pennsylvania. The submitted facts do not identify the other owners of the Property or their respective ownership interests. You state that the other owners of the Property wish to have coal extracted from the Property by surface mining. The Property is situated in the district assigned to DEP's Knox Office. You state that there is no way that you could affect either the permitting or inspection of the Property. You ask whether the Ethics Act would impose any prohibitions or restrictions upon you as a result of the prospective mining of the Property. Lytle, 08 -518 February 25, 2008 Page 2 Discussion: It is initially noted that 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 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 Surface Mine Conservation Inspector for DEP, you are a public employee subject to the provisions of the Ethics Act. This conclusion is based upon the position description and the job classification specifications, which when reviewed on an objective basis, indicate clearly that the power exists to take or recommend official action of a non - ministerial nature with respect to one or more of the following: contracting; procurement; administering or monitoring grants or subsidies; planning or zoning; inspecting; licensing; regulating; auditing; or other activity(ies) where the economic impact is greater than de minimis on the interests of another person. Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The following terms 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. 65 Pa.C.S. § 1102. "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. Lytle, 08 -518 February 25, 2008 Page 3 Pursuant to Section 1103(a) of the Ethics Act, 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. 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 applying the above provisions of the Ethics Act to the instant matter, you are advised that your spouse is a member of your "immediate family" as that term is defined in the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, in your public capacity as a Surface Mine Conservation Inspector with DEP, you would generally have a conflict of interest in matters that would financially impact you, your spouse, or a business with which you or your spouse is associated. In each instance of a conflict of interest, you would be required to abstain fully from participation. Generally, Section 1103(a) of the Ethics Act would prohibit you from using the authority of your public position, or confidential information accessed or received as a result of being a Surface Conservation Mine Inspector with DEP, to effectuate a private pecuniary benefit to your spouse relative to a property in which she has an ownership interest. Based upon the submitted facts that the Property is located outside of your inspection district, and that there is no way that you could affect either the permitting or inspection of the Property, no further analysis of your inquiry is required as to the Property. The propriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: As a Surface Mine Conservation Inspector with the Commonwealth of Pennsylvania, Department of Environmental Protection ("DEP"), you are a public employee subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Your spouse is a member of your "immediate family" as that term is defined in the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, in your public capacity as a Surface Mine Conservation Inspector with DEP, you would generally have a conflict of interest in matters that would financially impact you, your spouse, or a business with which you or your spouse is associated. In each instance of a conflict of interest, you would be required to abstain fully from participation. Generally, Section 1103(a) of the Ethics Act would prohibit you from using the authority of your public position, or confidential information accessed or received as a result of being a Surface Conservation Mine Inspector with DEP, to effectuate a private pecuniary benefit to your spouse relative to a property in which she has an ownership interest. Based upon the submitted facts that your spouse is part owner of the surface and minerals of a property ( "Property ") located outside of your inspection district, and that there is no way that you could affect either the permitting or inspection of the Property, no further analysis of your inquiry is required as to such Property. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), 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 Lytle, 08 -518 February 25, 2008 Page 4 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. Sincerely, Robin M. Hittie Chief Counsel