HomeMy WebLinkAbout14-526 Hoptak-Solga
ADVICE OF COUNSEL
June 18, 2014
Angie Hoptak-Solga
240 E. Tammany Street
Orwigsburg, PA 17961-1910
14-526
Dear Ms. Hoptak-Solga:
This responds to your undated letter postmarked April 21, 2014, received April
22, 2014, 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 prohibitions or restrictions upon a borough
council member, whose mother currently serves as the borough treasurer and the
borough tax collector, with regard to voting on matters pertaining to the borough
treasurer or the borough tax collector.
Facts:
On January 6, 2014, you were sworn into office as a Member of Council
for Orwigsburg Borough (“Borough”). Each month, Borough Council votes to accept the
reports submitted by the Borough Treasurer and the Borough Tax Collector. Your
mother currently serves as the Borough Treasurer and the Borough Tax Collector.
Based upon the above submitted facts, you seek guidance as to whether the
Ethics Act would impose prohibitions or restrictions upon you with regard to voting on
matters pertaining to the Borough Treasurer or the Borough Tax Collector. You state
that to date, you have abstained from voting on such matters.
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 Borough Council Member, you are a public official subject to the provisions
of the Ethics Act.
Sections 1103(a) and 1103(j) of the Ethics Act provide:
Hoptak-Solga, 14-526
June 18, 2014
Page 2
§ 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:
§ 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.
Hoptak-Solga, 14-526
June 18, 2014
Page 3
"Immediate family."
A parent, spouse, child, brother
or sister.
65 Pa.C.S. § 1102.
Subject to the statutory exclusions to the Ethics Act’s definition of the term
“conflict” or “conflict of interest,” 65 Pa.C.S. § 1102, 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.
Per the Pennsylvania Supreme Court’s decision in Kistler v. State Ethics
Commission, 610 Pa. 516, 22 A.3d 223 (2011), in order to violate Section 1103(a) of the
Ethics Act, a public official/public employee:
… must act in such a way as to put his \[office/public position\]
to the purpose of obtaining for himself a private pecuniary
benefit. Such directed action implies awareness on the part
of the \[public official/public employee\] of the potential
pecuniary benefit as well as the motivation to obtain that
benefit for himself.
Kistler, supra, 610 Pa. at 523, 22 A.3d at 227. 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.” Id., 610 Pa. at 528, 22 A.3d at 231.
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
Hoptak-Solga, 14-526
June 18, 2014
Page 4
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.
Having established the above general principles, you are advised as follows.
Your mother is a member of your “immediate family” as that term is defined in the
Ethics Act. Because your mother holds the positions of Borough Treasurer and
Borough Tax Collector, you generally would have a conflict of interest in matters before
Borough Council that would financially impact the Borough Treasurer or Borough Tax
Collector, including but not limited to Borough Council’s acceptance of the reports
submitted by the Borough Treasurer and the Borough Tax Collector. As noted above, in
each instance of a conflict of interest, you 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 response to your specific question regarding voting, a violation of Section
1103(a) of the Ethics Act could only be found if: (1) you would be consciously aware of
a private pecuniary benefit for you, a member of your immediate family such as your
mother, or a business with which you or a member of your immediate family is
associated; (2) your official action would constitute one or more specific steps to attain
that benefit; (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; and (4) your voting would not fall within either of
the statutory exceptions of Section 1103(j) of the Ethics Act.
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 Borough Code.
Conclusion:
As a Member of Council for Orwigsburg Borough (“Borough”), you
are a public official subject to the provisions of the Public Official and Employee Ethics
Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. Your mother is a member of your
“immediate family” as that term is defined in the Ethics Act. Because your mother holds
the positions of Borough Treasurer and Borough Tax Collector, you generally would
have a conflict of interest in matters before Borough Council that would financially
impact the Borough Treasurer or Borough Tax Collector, including but not limited to
Borough Council’s acceptance of the reports submitted by the Borough Treasurer and
the Borough Tax Collector. In each instance of a conflict of interest, you 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 response to your specific question
regarding voting, a violation of Section 1103(a) of the Ethics Act could only be found if:
(1) you would be consciously aware of a private pecuniary benefit for you, a member of
your immediate family such as your mother, or a business with which you or a member
of your immediate family is associated; (2) your official action would constitute one or
more specific steps to attain that benefit; (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; and (4) your voting
would not fall within either of the statutory exceptions of Section 1103(j) of the Ethics
Act. Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Hoptak-Solga, 14-526
June 18, 2014
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