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