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HomeMy WebLinkAbout17-501 HodgesSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL January 12, 2017 To the Requester: Ms. AmyBeth Hodges Dear Ms. Hodges: 17 -501 This responds to your undated letter postmarked November 18, 2016, received November 21, 2016, by which you requested an advisory from the Pennsylvania State Ethics Commission ( "Commission "). Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 lea—TS. § 1101 et seq., would impose prohibitions or restrictions upon an individual serving as a borough council member with regard to voting on a proposed plan to change the parking enforcement hours for certain metered spots in the borough, where: (1) in a private capacity, the individual owns a bed and breakfast located in the center of the borough's downtown; (2) guests of the bed and breakfast need to park overnight either at the metered spots or in the public parking garage; (3) guests of the bed and breakfast may currently park overnight for free at the metered spots under the current parking enforcement hours, or they may buy a parking pass and park overnight in the public parking ' garage; and (4) the proposed change in parking enforcement hours would eliminate the option for guests of the bed and breakfast to park overnight for free. Facts. You request an advisory from the Commission based upon submitted Facts be fairly summarized as follows. You are a Member of Council for the Borough of Gettysbur ( "Gettysburg Borough" ). In a private capacity, you own a bed and breakfast 'the Bed and Breakfast ") located in the center of downtown Gettysburg Borough. You do not have private parking for the Bed and Breakfast, and guests of the Bed and Breakfast need to park overnight either at metered spots ( "the Metered Spots ") or in the public parking garage the Parking Garage "). Guests may currently park overnight for free at the Metered Spots as parking at them is currently enforced from 8 a.m. to daily pm. daily except for Sunday, when parking is free all day. Guests may also buy a 24-hour parking pass for $10.00 and park overnight in the Parking Garage. The decision of where to park overnight is entirely up to the guests of the Bed and Breakfast, and 90% of them buy the 24 -hour parking pass. FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethicsPstate.pa.us Hodges, 17501 January 12, 2017 Page 2 The Gettysburg Borough Manager has devised a plan to make parking at the Metered Spots enforced 24 hours every day, including Sundays, which would eliminate the option for guests of the Bed and Breakfast to park overnight for free. You state that you are not sure how the proposed change in parking enforcement hours for the Metered Spots would affect the Bed and Breakfast. Another Member of Gettysburg Borough Council has voiced her concern that you would have a conflict of interest with regard to voting on the proposed change in parking enforcement hours, and she has suggested that you recuse yourself from voting on such matter. Based upon the above submitted facts, you ask whether the Ethics Act would impose prohibitions or restrictions upon you with regard to voting on either keeping the current parking enforcement hours for the Metered Spots or changing the parking enforcement hours for the Metered Spots to 24 hours every day. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of t e tics -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 discllosed all of the material facts. As a Member of Gettysburg Borough Council, you are a public official subject to the provisions of the Ethics Act. Sections 1103(a) and 11030) of the Ethics Act provide: § 1903. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 0) 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. Hod es 17 -501 January 12, 2017 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: § 9902. 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 ho[ding public office or employment for the private pecuniary benefit of himself, a member of his immediate amily 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. "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. "De minimis economic impact." An' economic consequence which has an insignificant effect. 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 officiallpublic employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. In each instance of a conflict of interest, the public officiallpublic employee would be required to abstain from participation. The abstention requirement would not be limited merely to voting, but would extend 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. Subject to certain statutory exceptions, in each instance of a voting conflict, Section 1103 of the Ethics Act would require the public official /public employee to abstain anw to publicly disclose the abstention and reasons for same, both Hodges, 17 -501 January 12, 2017 Page 4 orally and by filing a written memorandum to that effect with the person recording the minutes. 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 ection 1103(a ) of the Ethics Act, a public official/public employee: ... must act in such a way as to put his [officelpublic 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, su ra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics Act, a pu lic 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. A conflict of interest would not exist to the extent the "de minimis exclusion" and /or the classlsubclass exclusion set forth within the Ethics Acts 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; Schweinsbu_rg, 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. 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. Having established the above general principles, you are advised as follows. The Bed and Breakfast is a business with which you are associated in your capacity as the owner. You would have a conflict of interest and would violate Section 1103(a) of the Ethics Act in your official capacity as a Member of Gettysburg Borough Council by voting regarding the parking enforcement hours for the Metered Spots if: (1) you would be consciously aware of a private pecuniary benefit for yourself or the Bed and Breakfast; (2) your action(s) 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 Hodges, 17 -501 aJ nuary 12, 2017 Page 5 Pa.C.S. § 1102, would be applicable; and (4) your voting would not fall within a statutory exception under Section 11 036) of the Ethics Act. The submitted facts do not enable a conclusive determination as to whether the de minimis exclusion or the classlsubclass exclusion would be applicable as to any potential financial impact upon you or the Bed and Breakfast. 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 1103Q) of the Ethics Act would be applicable. Additionally, the disclosure requirements of SSection 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. Specifically not addressed herein is the applicability of the Borough Code. Conclusion. Based upon the submitted facts that: 1) you are a Member of ounce or the Borough of Gettysburg ("Gettysburg Borough'); (2) in a private capacity, you own a bed and breakfast ("the Bed and reakfast) located in the center of downtown Gettysburg Borough; (3) you do not have private parking for the Bed and Breakfast, and guests of the Bed and Breakfast need to park overnight either at metered parking spots ( "the Metered Spots ") or in the public parking garage ( "the Parking Garage ); (4) guests may currently park overnight for free at the Metered Spots as parking at them is currently enforced from 8 a.m. to 8 p.m. daily except for Sunday, when parking is free all day; (5} guests may also buy a 24 -hour parking pass for $10.00 and park overnight in the Parking Garage; (6) the decision of where to park overnight is entirely up to the guests of the Bed and Breakfast, and 90% of them buy the 24 -hour parking pass; (7) the Gettysburg Borough Manager has devised a plan to make parking at the Metered Spots enforced 24 hours every day, including Sundays, which would eliminate the option for guests of the Bed and Breakfast to park overnight for free; (8) you are not sure how the proposed change in parking enforcement hours fort e Metered Spots would affect the Bed and Breakfast; and (9) another Member of Gettysburg Borough Council has voiced her concern that you would have a conflict of interest with regard to voting on the proposed change in parking enforcement hours, and she has suggested that you recuse yourself from voting on such matter, you are advised as follows. As a Member of Gettysburg Borough Council, 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 seg. The Bed and Breakfast is a business with which you are associated in your capacity as the owner. You would have a conflict of interest and would violate Section 1103(a) of the Ethics Act in your official capacity as a Member of Gettysburg Borough Council by voting regarding the parking enforcement hours for the Metered Spots if: (1) you would be consciously aware of a private pecuniary benefit for ourself or the Bed and Breakfast; (2) your action(s) 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 a statutory exception under Section 11030) of the Ethics Act. The submitted facts do not enable a conclusive determination as to whether the de minimis exclusion or the class/subclass exclusion would be applicable as to any potential financial impact upon you or the Bed and Breakfast. 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 Hodges, 17 -501 aJ nuary 12, 2017 Page 6 Section 11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied m 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. 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 actual! received at the Commission within thirty (30) days of the date ot this Advice pursuant to 51 Pa. Code § a3.2(h). The. appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (711'-W-0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincer y, XRobinrM� . Hittie Chief Counsel