HomeMy WebLinkAbout17-503 O'Connor4
309 FINANCE BUILDING
P0, BOX 11470
HARRISBURG, PA 1 71 08 -1 470
(717) 783 -1610
1 -800 -932 -0936
ADVICE OF COUNSEL
January 27, 2017
To the Requester:
Robert E. O'Connor, Esquire
Dear Mr. O'Connor:
17 -503
This responds to your letter dated November 29, 2016 (postmarked December 1,
2016, and received December 5, 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
Pa .S. § 1101 et sec., would impose prohibitions or restrictions upon an individual
serving as a member and president of a borough council, who resides in a housing unit
that is part of housing owned by the borough, with regard to voting on. (1) matter s
related to im rovements made to the borough -owned housing as a whhole; or �2�
matter(s) related to the repair /maintenance of only the particular housing unit in which
the individual resides.
Facts: You request an advisory from the Commission on behalf of Christine
Pete on ( "Ms. Peterson "). You have submitted facts that may be fairly summarized as
follows.
Ms. Peterson is a Member and President of Council for the Borough of Upland
�"Borough" Ms. Peterson resides in a housing unit that is part of housing owned by the
orough (" W Borough -Owned Housing "). At times, Borough Council may need to vote
to authorize certain repairs or maintenance items for the Borough -Owned Housing such
as the replacement of roofs and windows, painting, and the like. You state that
whenever an issue relating to the Borough -Owned Housing is listed on the agenda, Ms.
Peterson always abstains from voting on such issue.
Based upon the above submitted facts, the following questions are presented by
your advisory request:
(1) Whether the Ethics Act would permit Ms. Peterson to vote on matter(s)
related to improvements made to the Borough -Owned Housing as a
whole; and
FAX: (717) 787 -0806 0 Web Site; www.ethics.state.pa.us a e -mail; ethicsC�state.pa.us
O'Connor, 17 -503
an�7, 2017
Page 2
(2) Whether the Ethics Act would permit Ms. Peterson to vote on matter(s)
related to the repair /maintenance of only the particular housing unit in
which she resides, such as, for example, an authorization to expend
Borough funds to replace the oven located in Ms. Peterson's housing unit.
Discussion: It is initiall y noted that pursuant to Sections 1107(10) and 1107(11) of
e 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 disc osed all of the material facts.
It is further initially noted that, pursuant to the same aforesaid Sections of the
Ethics Act, an opinion/advice may be given only as to prospective (future) conduct. To
the extent that your inquiry relates to conduct that has already. occurred, such past
conduct may not be addressed in the context of an advisory opinion. However, to the
extent your inquiry relates to future conduct, your inquiry may and shall be addressed.
As a Member and President of Borough Council, Ms. Peterson is a public official
subject to the provisions of the Ethics Act.
Sections 1103(a) and 11030) 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.
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.
65 Pa.C.S. §§ 1103(a), 0 }.
O'Connor, 17 -503
January 27, 2017
Page 3
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.
"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 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.
In each instance of a conflict of interest, the public official/public 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
coffin RE, Section 11030) of the Ethics Act would require the public official/public
employee to abstain and to publicly disclose the abstention and reasons for same, both
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 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
O'Connor, 17 -503
anT�uary27, 2017
Page 4
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
cct, 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.
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; Schweinsbur , Order 900.
The Commission has determined the apFi6ability 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 app /y, 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 de ree" (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
exTusan 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.
Ms. Peterson would not have a conflict of interest and would not violate Section
1103(a) of the Ethics Act in her official capacity as a Member and President of Borough
Council by voting on matter(s) related to improvements made to the Borough -Owned
Housing as a whole or matter(s) related to the repair /maintenance of only the particular
housing unit in which she resides unless: (1) she would be consciously aware of a
private pecuniary benefit for herself, a member of her immediate family, or a business
with which she or a member of her immediate family is associated; (2) her 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) her voting would not fall within a statutory exception under Section
11030) of the Ethics Act.
As noted above, in each instance of a conflict of interest, Ms. Peterson would be
required to abstain from participation, which would include voting unless one of the
statutory exceptions of Section 11030) of the Ethics Act would be applicable.
Additionally, the disclosure requirements of Section 11 030) of the Ethics Act would have
to be satisfied in the event of a voting conflict.
O'Connor, 17 -503
anTa7, 2017
Page 5
The propriety of the proposed conduct has only been addressed under the Ethics
Act; the applicability f 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) Christine Peterson ( "Ms.
e erson is a Member and President of Council for the Borough of Upland
( "Borough "); (2) Ms. Peterson resides in a housing unit that is part of housing owned by
the Borough ( "the Borough .Owned Housing "); (3) at times, Borough Council may need
to vote to authorize certain repairs or maintenance items for the Borough -Owned
Housing such as the replacement of roofs and windows, painting, and the like; and 4)
whenever an issue relating to the Borough -Owned Housing is listed on the agenda, s.
Peterson always abstains from voting on such issue, you are advised as follows.
As a Member and President of Borough Council, Ms. Peterson is a public official
subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.L.S. § 1101 et se Ms. Peterson would not have a conflict of interest and would not
violate Section � 03 a) of the Ethics Act in her official capacity as a Member and
President of Borough Council by voting on matter(s) related to improvements made to
the Borough -Owned Housing as a whole or matter(s) related to the repair /maintenance
of only the particular housing unit in which she resides unless: (1) she would be
consciously aware of a private pecuniary benefit for herself, a member of her immediate
family, or a business with which she or a member of her immediate family is associated;
(2) her 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) her voting would not fall within a statutory exception under
Section 11030) of the Ethics Act.
In each instance of a conflict of interest, Ms. Peterson would be required to
abstain from participation, which would include voting unless one of the statutory
exceptions of 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
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.
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 writingg and must be actually
received at the Commission within thir73.2jh). (30) days of the date of this
Advice pursuant to 51 Pa. Code § The appeal may be
received at the Commission by hand devery, United States mail,
delivery service, or by FAX transmission (717- 787- 0806). Failure to
O'Connor, 17 -503
anary 227, 2017
Page 6
file such an appeal at the Commission within thirty (34) days may
result in the dismissal of the appeal.
Sincer ly,
�4e-
;iobin M. Hittie
Chief Counsel