HomeMy WebLinkAbout15-501 Confidential
ADVICE OF COUNSEL
February 4, 2015
15-501
This responds to your letter dated December 9, 2014, 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 the Political
Subdivision A Public Official B with regard to soliciting vendors which currently do
business with the office of the Political Subdivision A Public Official B and/or Political
Subdivision A for money to help defray the cost of the C D.
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 the Political Subdivision A Public Official B. You are considering
hosting the C D (the “Event”) in \[name of municipality\], Pennsylvania. You state that C
conducts the Event pursuant to \[citation\]. The Event is paid for by Es and sponsorship
fees, and the host is expected to raise money from sponsors to help defray the cost of
the Event.
Based upon the above submitted facts, you ask whether the Ethics Act would
permit you to solicit vendors which currently do business with the office of the Political
Subdivision A Public Official B and/or Political Subdivision A for money to help defray
the cost of the Event.
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 the Political Subdivision A Public Official B, you are a public official subject to
the provisions of the Ethics Act.
Sections 1103(a) and 1103(j) of the Ethics Act provide:
Confidential Advice, 15-501
February 4, 2015
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.
Confidential Advice, 15-501
February 4, 2015
Page 3
"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. Juliante, Order 809.
One of the exclusions to the statutory definition of "conflict" or "conflict of
interest," referred to herein as 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. The Commission has determined 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 up to approximately $1,200 to be de
minimis. See, Fidler, Order 1637.
Section 1103(c) of the Ethics Act, 65 Pa.C.S. § 1103(c), provides:
§ 1103. Restricted activities
(c) Accepting improper influence.--
No public
official, public employee or nominee or candidate for public
office shall solicit or accept anything of monetary value,
including a gift, loan, political contribution, reward or promise
of future employment, based on any understanding of that
public official, public employee or nominee that the vote,
official action or judgment of the public official or public
employee or nominee or candidate for public office would be
influenced thereby.
65 Pa.C.S. § 1103(c).
In applying the above provisions of the Ethics Act to your inquiry, you are advised
as follows.
Section 1103(c) of the Ethics Act would prohibit you from soliciting or accepting
vendor sponsorship(s) based on an understanding that your official action or judgment
would be influenced thereby.
Confidential Advice, 15-501
February 4, 2015
Page 4
As for Section 1103(a) of the Ethics Act, things of value received from vendor(s)
may form the basis for a violation of Section 1103(a) of the Ethics Act when a public
official/public employee uses the authority of his public position as to such vendor(s),
the element of a prohibited private pecuniary benefit is established, and the de minimis
exclusion is not applicable. Cf., Calhoun, Order 1562; Haldeman, Order 1443; Munford,
Order 1390; Espenshade, Order 1387; Helsel, Order 801. It is not clear from the
submitted facts whether money obtained from vendor(s) to defray the cost of the Event
would result in any private pecuniary benefit to you (for example, by reducing out-of-
pocket expenses you would otherwise incur) or to a member of your immediate family or
a business with which you or a member of your immediate family is associated as the
Ethics Act defines those terms. The submitted facts also do not indicate the amount(s)
that vendor(s) would provide or would be asked to provide.
Therefore, you are generally advised that soliciting money to defray the cost of
the Event from vendor(s) that do business with the office of the Political Subdivision A
Public Official B and/or Political Subdivision A would transgress Section 1103(a) of the
Ethics Act if the elements of a use of authority of office for a prohibited private pecuniary
benefit would be established and the de minimis exclusion would not be applicable.
Absent any such improper influence/understanding or prohibited private
pecuniary benefit, Section 1103(a) and Section 1103(c) of the Ethics Act would not
prohibit you from soliciting vendors which currently do business with the office of the
Political Subdivision A Public Official B and/or Political Subdivision A for money to help
defray the cost of the Event.
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 F.
Conclusion:
As the Political Subdivision A Public Official B, 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. Based upon the submitted facts that: (1) you are
considering hosting the C D (the “Event”) in \[name of municipality\], Pennsylvania; (2)
the C conducts the Event pursuant to \[citation\]; and (3) the Event is paid for by Es and
sponsorship fees, and the host is expected to raise money from sponsors to help defray
the cost of the Event, you are advised as follows.
Section 1103(c) of the Ethics Act would prohibit you from soliciting or accepting
vendor sponsorship(s) based on an understanding that your official action or judgment
would be influenced thereby.
Soliciting money to defray the cost of the Event from vendor(s) that do business
with the office of the Political Subdivision A Public Official B and/or Political Subdivision
A would transgress Section 1103(a) of the Ethics Act if the elements of a use of
authority of office for a prohibited private pecuniary benefit would be established and the
de minimis exclusion would not be applicable.
Absent any such improper influence/understanding or prohibited private
pecuniary benefit, Section 1103(a) and Section 1103(c) of the Ethics Act would not
prohibit you from soliciting vendors which currently do business with the office of the
Political Subdivision A Public Official B and/or Political Subdivision A for money to help
defray the cost of the Event.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Confidential Advice, 15-501
February 4, 2015
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