HomeMy WebLinkAbout13-570 Confidential
ADVICE OF COUNSEL
October 28, 2013
13-570
This responds to your letter of September 3, 2013, 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 prohibitions or restrictions upon two As for [name
of political subdivision] (“the Political Subdivision”), Pennsylvania, as to: (1) authorizing
the expenditure of public funds to advocate and educate residents of the Political
Subdivision with regard to proposed changes to the Political Subdivision’s current B; or
(2) advocating during work hours with regard to proposed changes to the Political
Subdivision’s current B.
Facts:
You have been authorized by Political Subdivision As Individual 1 and
Individual 2, hereinafter collectively referred to as “the Two Political Subdivision As,” to
request a confidential advisory from the Pennsylvania State Ethics Commission on their
behalf. You have submitted facts that may be fairly summarized as follows.
The Political Subdivision is governed by the [number]-Member Political
Subdivision C pursuant to the D. You have submitted a copy of the D, which document
is incorporated herein by reference.
Pursuant to an E passed on [date], the F was established to consider and make
recommendations as to whether the Political Subdivision’s current B should be
changed. The F’s recommendations will be presented within [certain time frame] and
will be subject to a subsequent E to determine whether such recommendations should
be enacted. The F’s meetings and all of its other functions are funded by the Political
Subdivision.
[Number] of the [number] Members of the F are known as the G, and they are
vocal proponents of eliminating the Political Subdivision’s current B and replacing it with
H. [Number] of the F’s [number] Is are held by individuals affiliated with the G. You
state that the J of the F recently [expressed a certain opinion as to the
recommendations to be made by the F].
You state that the Political Subdivision C maintains that the Political Subdivision’s
current B is less expensive and more efficient than the alternative proposals. You
further state that the Political Subdivision C seeks to advocate for the Political
Confidential Advice, 13-570
October 28, 2013
Page 2
Subdivision’s current B so that the residents of the Political Subdivision are fully
informed.
Based upon the above submitted facts, you pose the following questions:
(1) Whether the Ethics Act would permit the Two Political Subdivision As to
authorize the expenditure of public funds to advocate and educate the
residents of the Political Subdivision with regard to the proposed changes
to the Political Subdivision’s B; and
(2) Whether the Ethics Act would permit the Two Political Subdivision As to
publicly advocate during work hours with regard to the proposed changes
to the Political Subdivision’s B.
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.
The Two Political Subdivision As are public officials 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.
Confidential Advice, 13-570
October 28, 2013
Page 3
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.
"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.
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.
Confidential Advice, 13-570
October 28, 2013
Page 4
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). Based upon Kistler,
the existence of a violation of Section 1103(a) would depend upon the circumstances in
a given case. Raphael, Opinion 13-003.
A conflict of interest would not exist to the extent the “de minimis exclusion”
and/or the “class/subclass exclusion” set forth within the Ethics Act’s definition of the
term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, would be applicable.
The de minimis exclusion precludes a finding of conflict of interest as to an action
having a de minimis (insignificant) economic impact. Thus, when a matter that would
otherwise constitute a conflict of interest under the Ethics Act would have an
insignificant economic impact, a conflict would not exist and Section 1103(a) of the
Ethics Act would not be implicated. See, Kolb, Order 1322; Schweinsburg, Order 900.
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.
In addition, Sections 1103(b) and 1103(c) of the Ethics Act, 65 Pa.C.S. §§
1103(b), (c), provide in part that no person shall offer or give to a public official/public
employee anything of monetary value and no public official/public employee shall solicit
or accept anything of monetary value based upon the understanding that the vote,
official action, or judgment of the public official/public employee would be influenced
thereby. Reference is made to these provisions of the law not to imply that there has
been or will be any transgression thereof but merely to provide a complete response to
the question presented.
Having set forth the above principles, you are advised as follows.
Pursuant to Section 1103(a) of the Ethics Act, each of the Two Political
Subdivision As would have a conflict of interest pursuant to Section 1103(a) of the
Ethics Act as to authorizing the expenditure of public funds to advocate and educate the
residents of the Political Subdivision with regard to the proposed changes to the Political
Subdivision’s B, or by publicly advocating during work hours with regard to the proposed
changes to the Political Subdivision’s B, to the extent that: (1) the Political Subdivision A
would be consciously aware of a private pecuniary benefit for himself, a member of his
immediate family, or a business with which he or a member of his immediate family is
associated; (2) the Political Subdivision A’s action(s) would constitute one or more
specific steps to attain that benefit; and (3) neither the de minimis exclusion nor the
class/subclass exclusion set forth within the Ethics Act’s definition of the term "conflict"
or "conflict of interest," 65 Pa.C.S. § 1102, would be applicable.
Confidential Advice, 13-570
October 28, 2013
Page 5
As noted above, in each instance of a conflict of interest, the Political Subdivision
A(s) with the conflict 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.
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 As for [name of political subdivision] (“the Political Subdivision”),
Pennsylvania, Individual 1 and Individual 2 (hereinafter collectively referred to as “the
Two Political Subdivision As”) are public officials 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) the Political Subdivision is governed by the [number]-
Member Political Subdivision C pursuant to the D; (2) pursuant to an E passed on
[date], the F was established to consider and make recommendations as to whether the
Political Subdivision’s current B should be changed; (3) the F’s recommendations will be
presented within [certain time frame] and will be subject to a subsequent E to determine
whether such recommendations should be enacted; (4) the F’s meetings and all of its
other functions are funded by the Political Subdivision; (5) [number] of the [number]
Members of the F are known as the G, and they are vocal proponents of eliminating the
Political Subdivision’s current B and replacing it with H; (6) [number] of the F’s [number]
Is are held by individuals affiliated with the G; (7) the J of the F recently [expressed a
certain opinion as to the recommendations to be made by the F]; (8) the Political
Subdivision C maintains that the Political Subdivision’s current B is less expensive and
more efficient than the alternative proposals; and (9) the Political Subdivision C seeks to
advocate for the Political Subdivision’s current B so that the residents of the Political
Subdivision are fully informed, you are advised as follows.
Pursuant to Section 1103(a) of the Ethics Act, each of the Two Political
Subdivision As would have a conflict of interest pursuant to Section 1103(a) of the
Ethics Act as to authorizing the expenditure of public funds to advocate and educate the
residents of the Political Subdivision with regard to the proposed changes to the Political
Subdivision’s B, or by publicly advocating during work hours with regard to the proposed
changes to the Political Subdivision’s B, to the extent that: (1) the Political Subdivision A
would be consciously aware of a private pecuniary benefit for himself, a member of his
immediate family, or a business with which he or a member of his immediate family is
associated; (2) the Political Subdivision A’s action(s) would constitute one or more
specific steps to attain that benefit; and (3) neither the de minimis exclusion nor the
class/subclass exclusion set forth within the Ethics Act’s definition of the term "conflict"
or "conflict of interest," 65 Pa.C.S. § 1102, would be applicable. In each instance of a
conflict of interest, the Political Subdivision A(s) with the conflict 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. 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.
Confidential Advice, 13-570
October 28, 2013
Page 6
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