HomeMy WebLinkAbout13-504 Schorpp
ADVICE OF COUNSEL
January 31, 2013
Edward L. Schorpp, Esquire
Office of the Solicitor
Cumberland County Courthouse
1 Courthouse Square, Room 208
Carlisle, PA 17013
13-504
Dear Mr. Schorpp:
This responds to your letters of December 7, 2012, and January 3, 2013, 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.C.S. § 1101 et seq., would impose any prohibitions or restrictions upon a county
employee with regard to applying for a personal Sheetz loyalty program card to
purchase fuel at a discount for county vehicles, where: (1) the county employee would
receive certain offers provided by Sheetz to holders of the loyalty program card; and (2)
such offers would not be dependent upon the purchase of fuel or the volume of fuel
purchased by the county.
Facts:
As Solicitor for Cumberland County (“County”), Pennsylvania, you have
been authorized by the County Board of Commissioners to request an advisory from the
Pennsylvania State Ethics Commission under the following submitted facts.
Sheetz, which sells gasoline and diesel fuels and convenience store items,
currently offers a “My Sheetz Card” loyalty program (the “Program”). The Program
provides a discount of three cents per gallon on fuel purchases. The Program also
provides offers (the “Offers”) to a Program cardholder such as “buy ten get one free” on
certain items, special in-store savings, and notification to a cardholder via email of free
items added to the cardholder’s card. You state that the Offers provided to a Program
cardholder are not dependent upon the purchase of fuel or the volume of fuel purchased
by the cardholder.
The County currently has a contractual relationship with Sheetz under which a
County credit card was established for certain authorized County employees to use
when purchasing fuel for County vehicles. The County would like to take advantage of
the fuel discount available through the Program. You state that in order for the County
to do so, Sheetz would require each County-authorized employee to apply for a
personal Program card which would apparently be tied to a driver’s license number. A
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January 31, 2013
Page 2
County-authorized employee would use the personal Program card at the dispensing
fuel pump to reduce the fuel price and would charge the fuel purchase to the County’s
credit card. A County employee holding a personal Program card would receive the
Offers provided to a Program cardholder.
Based upon the above submitted facts, you seek guidance as to whether the
Ethics Act would impose any prohibitions or restrictions upon a County employee with
regard to applying for a personal Program card to purchase fuel at a discount for County
vehicles.
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.
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 are defined in the Ethics Act as follows:
Schorpp, 13-504
January 31, 2013
Page 3
§ 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.
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 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.
Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have
to be satisfied in the event of a voting conflict.
In applying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
Section 1103(a) of the Ethics Act would not prohibit a County employee who is
subject to the provisions of the Ethics Act from applying for a personal Program card to
purchase fuel at a discount for County vehicles because, under the submitted facts, the
County employee would not receive any private pecuniary benefit as a result of using
the Program card to make such fuel purchases for the County.
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 County Code.
Conclusion:
Based upon the submitted facts that: (1) Sheetz, which sells
gasoline and diesel fuels and convenience store items, currently offers a “My Sheetz
Card” loyalty program (the “Program”); (2) the Program provides a discount of three
Schorpp, 13-504
January 31, 2013
Page 4
cents per gallon on fuel purchases; (3) the Program also provides offers (the “Offers”) to
a Program cardholder such as “buy ten get one free” on certain items, special in-store
savings, and notification to a cardholder via email of free items added to the
cardholder’s card; (4) the Offers provided to a Program cardholder are not dependent
upon the purchase of fuel or the volume of fuel purchased by the cardholder; (5)
Cumberland County (“County”), Pennsylvania, currently has a contractual relationship
with Sheetz under which a County credit card was established for certain authorized
County employees to use when purchasing fuel for County vehicles; (6) the County
would like to take advantage of the fuel discount available through the Program, and in
order for the County to do so, Sheetz would require each County-authorized employee
to apply for a personal Program card which would apparently be tied to a driver’s
license number; (7) a County-authorized employee would use the personal Program
card at the dispensing fuel pump to reduce the fuel price and would charge the fuel
purchase to the County’s credit card; and (8) a County employee holding a Program
card would receive the Offers provided to a Program cardholder, you are advised as
follows.
Section 1103(a) of the Public Official and Employee Ethics Act (“Ethics Act”), 65
Pa.C.S. § 1103(a), would not prohibit a County employee who is subject to the
provisions of the Ethics Act from applying for a personal Program card to purchase fuel
at a discount for County vehicles because, under the submitted facts, the County
employee would not receive any private pecuniary benefit as a result of using the
Program card to make such fuel purchases for the County. 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.
Sincerely,
Robin M. Hittie
Chief Counsel