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HomeMy WebLinkAbout12-579 Confidential ADVICE OF COUNSEL November 27, 2012 12-579 This responds to your advisory request dated October 15, 2012, by which you requested a confidential advisory from the Pennsylvania State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose any prohibitions or restrictions upon an individual employed as A and B for the C of Governmental Body D with regard to participating before executive branch and local government decision-makers in an E for funding of a proposed F that might be constructed in close proximity to the individual’s G. Facts: You request a confidential advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. You are A and B for the C of Governmental Body D. It has been proposed that an F be constructed that would be adjacent to several Hs and might be in close proximity to your G. The I would have open access to the F. You state that eligible [type of projects], including [examples of projects], are granted state funding annually across the Commonwealth in amounts determined by officials in the executive branch and that local government officials also may elect to invest local taxpayer funds for such projects. You state that you are not a decision- maker in either the executive branch or local government. Based upon the above submitted facts, you ask whether you would have a conflict of interest with regard to participating before executive branch and local government decision-makers in an E for funding of the F, when you would not receive any compensation for your effort. 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. Confidential Advice, 12-579 November 27, 2012 Page 2 You acknowledge that as A and B for C of Governmental Body D, you are a public employee subject to the provisions of the Ethics Act. Sections 1103(a) and 1103(j) 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), (j). 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. Confidential Advice, 12-579 November 27, 2012 Page 3 "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. 65 Pa.C.S. § 1102. 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 Pennsylvania Supreme Court has held that in order to violate Section 1103(a) of the Ethics Act, a public official/public 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.” Kistler v. State Ethics Commission, 610 Pa. 516, 528, 22 A.3d 223, 231 (2011). 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 1103(j) of the Ethics Act would be applicable. In applying the above provisions of the Ethics Act to your inquiry, you are advised as follows. You would not transgress Section 1103(a) of the Ethics Act by participating before executive branch and local government decision-makers in an E for funding of the F unless you would use the authority of your public position or confidential information received through holding your public position to attain a private pecuniary benefit for yourself, member(s) of your immediate family, or a business with which you or member(s) of your immediate family are associated. If your actions would be undertaken solely in your private capacity and without any use of the authority of your public position or confidential information received by being in your public position, the requisite element of “use of authority of office or employment” would not be established, and no violation of Section 1103(a) of the Ethics Act would occur. Even if your actions would involve a use of the authority of your public position or confidential information received through holding your public position, a violation of Section 1103(a) would not occur if such actions would not constitute specific steps to attain a private pecuniary benefit for you, member(s) of your immediate family, or a business with which you or member(s) of your immediate family are associated. Kistler, supra. In any event, a violation of Section 1103(a) would not occur if one of the two exclusions to the Ethics Act’s definition of the term "conflict" or "conflict of interest" (referred to herein as the "de minimis exclusion" and the "class/subclass exclusion"), 65 Pa.C.S. § 1102, would be applicable. Based upon the submitted facts, it cannot be determined whether either of the exclusions would be applicable. Therefore, this advisory must be limited to providing the following general advice as to the exclusions. The de minimis exclusion precludes a finding of conflict of interest as to an action having a de minimis (insignificant) economic impact. See, Kolb, Order 1322; Confidential Advice, 12-579 November 27, 2012 Page 4 Schweinsburg, Order 900. The Commission determines the applicability of the de minimis exclusion on a case-by-case basis, considering all relevant circumstances. In the past, the Commission has found amounts ranging from $2 to approximately $500 to be de minimis. See, Bixler v. State Ethics Commission, 847 A.2d 785 (Pa. Cmwlth. 2004). 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 member is associated must be affected "to the same degree" (in no way differently) than the other members of the class/subclass. 65 Pa.C.S. § 1102; see, Kablack, Opinion 02-003; Rubenstein, Opinion 01-007. The first criterion of the exclusion 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 individual/business in question and the other members of the class/subclass are reasonably affected to the same degree by the proposed action. Kablack, supra. 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. Conclusion: As A and B for the C of Governmental Body D, 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. Based upon the submitted facts that: (1) it has been proposed that an F be constructed that would be adjacent to several Hs and might be in close proximity to your G; (2) the I would have open access to the F; (3) eligible [type of projects], including [examples of projects], are granted state funding annually across the Commonwealth in amounts determined by officials in the executive branch, and local government officials also may elect to invest local taxpayer funds for such projects; and (4) you are not a decision-maker in either the executive branch or local government, you are advised as follows. You would not transgress Section 1103(a) of the Ethics Act by participating before executive branch and local government decision-makers in an E for funding of the F unless you would use the authority of your public position or confidential information received through holding your public position to attain a private pecuniary benefit for yourself, member(s) of your immediate family, or a business with which you or member(s) of your immediate family are associated. If your actions would be undertaken solely in your private capacity and without any use of the authority of your public position or confidential information received by being in your public position, the requisite element of “use of authority of office or employment” would not be established, and no violation of Section 1103(a) of the Ethics Act would occur. Even if your actions would involve a use of the authority of your public position or confidential information received through holding your public position, a violation of Section 1103(a) would not occur if such actions would not constitute specific steps to attain a private pecuniary benefit for you, member(s) of your immediate family, or a business with which you or member(s) of your immediate family are associated. In any event, a violation of Section 1103(a) would not occur if one of the two exclusions to the Ethics Act’s definition of the term "conflict" or "conflict of interest" (referred to herein as the "de minimis exclusion" and the "class/subclass exclusion"), 65 Pa.C.S. § 1102, would be applicable. Based upon the submitted facts, it cannot be determined whether either of the exclusions would be applicable. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Confidential Advice, 12-579 November 27, 2012 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 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