HomeMy WebLinkAbout17-505 ConfidentialSTATE ETHICS COMMISSION
309 FINANCE BUILDING
PO. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1 -800- 932 -0936
ADVICE OF COUNSEL
February 8, 2017
To the Requester:
17 -505
This responds to your letter dated December 12, 2016, by which you requested
confidential advisory from the Pennsylvania State Ethics Commission ("Commission").
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
STS. § 1101 et seq., would impose prohibitions or restrictions upon an individual
serving as an A For Political Subdivision B, who is also employed as the C of Political
Subdivision D, with regard to voting as a Political Subdivision B A on: (1' matter(s)
pertaining to the E of Political Subdivision D by Political Subdivision B; (2) the F of G(s)
of the Political Subdivision D H; or (3) other matter(s) related to Political Subdivision
and/or the individual's employment with Political Subdivision D.
Facts: You request a confidential advisory from the Commission based upon
submitted facts, the material portion of which may be fairly summarized as follows.
You are a Political Subdivision B A. The [governing body of Political Subdivision
B] consists of three Members. In addition to serving as a Political Subdivision B A, you
are employed as the C of Political Subdivision D. The Political Subdivision B As 1 the
Gs of the Political Subdivision D H.
You state that your duties as the C of Political Subdivision D include, inter alia:
[certain duties].
Political Subdivision B and Political Subdivision D current] yy have involvement
together in relation to various matters, including but not limited to the following: (1
[number] of Political Subdivision.D's [number] staff members are Political Subdivision B
employees who also perform job functions for Political Subdivision B, and Political
Subdivision D reimburses Political Subdivision B for part of the costs associated with
those Inumber] employees; (2) Political Subdivision D's staff is part of Political
Subdivision B's [type of pplan]; (3) Political Subdivision D's Js are located on Political
Subdivision B property; (4) Political Subdivision D shares [certain services] with Political
Subdivision B; (5) Political Subdivision D's Ks are used for Political Subdivision B Ls,
including but not limited to [certain activities]; and (6) Political Subdivision D's bill
payments are endorsed by Political Subdivision B staff in order to be payable.
FAX: (717) 787 -0806 • Web Site: www.ethics.state,pa.us • e -mail: ethics0state.pa.us
Confidential Advice, 17 -505
February S, 2017
Page 2
You state that circumstances involving the relationship between Political
Subdivision B and Political Subdivision D have changed and that Political Subdivision B
is considering the E of Political Subdivision D pursuant to the K
You note that you previously obtained an Advice, specifically, [citation] ( "the Prior
Advice "), which was issued to you on [date]. The Prior Advice determined, in pertinent
part, that as a Political Subdivision B A, you would generally have a conflict of interest
under Section 1103(a) of the Ethics Act in matters pertaining to the Gs of the Political
Subdivision D H- -such as the N, F, or O by the [governing body of Political Subdivision
B] of G(s) of the Political Subdivision D H -- because such individuals) would exercise
authority over you with =bject to your employment as Political Subdivision Us C. The
Prior Advice concluded to the voting conflict exceptions of Section 1103Q)
of the Ethics Act, you would be required to abstain fully from participation in each
instance of a conflict of interest. The Prior Advice further concluded that because the
[governing body of Political Subdivision B] consists of three Members, Section 11030)
of the Ethics Act would permit you to vote to break a tie vote of the other Political
Subdivision B As despite such a conflict, provided you would first abstain and disclose
the conflict as required by Section 11030) of the Ethics Act.
Based upon the above submitted facts, you pose the following questions:
(1) Whether the Ethics Act would permit you to vote as a Political Subdivision
B A on matter(s) that would directly affect Political Subdivision D and/or
your employment as the C of Political Subdivision D;
(2) Whether the Ethics Act would permit you to vote as a Political Subdivision
B A on: (a) a written P or Q between Political Subdivision B and Political
Subdivision D that would formalize Political Subdivision Us R on Political
Subdivision B property; or (b ) a formal contract between Political
Subdivision B and Political Subdivision D concerning the use of Political
Subdivision Us Ks and employees during [certain events];
(3) Whether the Ethics Act would ermit you to vote as a Political Subdivision
B A on matter(s) relating to tre E of Political Subdivision D by Political
Subdivision B, and in particular, whether you would be permitted to vote to
break a tie vote as to a resolution or motion to S Political Subdivision D;
and
(4) In light of the now - unsettled relationship between Political Subdivision B
and Political Subdivision D, whether the Ethics Act would permit you, in
your capacity as a Political Subdivision B A, to vote to break a tie vote on
the F of G(s) of the Political Subdivision D H.
Discussion: It is initially noted that pursuant to Sections 9107(10) and 1107(11) of
the 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 .(1 0 }, (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 in uiry 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.
Confidential Advice, 17 -505
February 8, 20 7
Page 3
As a Political Subdivision B A, you are a public official subject to the provisions of
the Ethics Act. As the C of Political Subdivision D, you are a public official /public
employee 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
pprovided 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).
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 employyee of the authority of his office or
employment or any con idential 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.
Confidential Advice, 17 -505
February 8, 2017
Page 4
"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.
"Political subdivision." Any county, city, borough,
incorporated town, township, school district, vocational
school, county institution district, and any authority, entity or
body organized by the aforementioned.
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
con lict, Section 1103()} of the Ethics Act would require the public officiallpublic
employee to abstain e i 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 State Ethics Commission precedent, a public official /public employee
generally would have a conflict of interest in matters pertaining to a person who, in a
different capacity, has authority or control over the public official/public employee. See,
Confidential Opinion, 05 -004; Elisco, Opinion 00 -003, Woodrinq, Opinion 90 -001
(involving reciprocity of power).
The Pennsylvania Supreme Court has held that to violate Section 1103(a) of the
Ethics Act, a public officiallpublic 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.
Confidential Advice, 17 -505
February 8, 20T7_
Page 5
Kistler v. State Ethics Commission, 610 Pa. 516, 523, 22 A.3d 223, 227 (2011). To
violate Section 1103(a) ot 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.
Having established the above general principles, you are advised as follows.
Since Political Subdivision D is a "political subdivision" and not a "business" as
defined by the Ethics Act, you would not have a conflict of interest under Section
1103(a) of the Ethics Act in matters before the [governing body of Political Subdivision
B] that would financially impact Political Subdivision D but that would not financially
impact you, a member of your immediate family, or a business with which you or a
member of your immediate family is associated. A pecuniary benefit flowing solely to a
governmental entity such as Political Subdivision D would not form the basis for a
conflict of interest under Section 1103(a) of the Ethics Act. See, Confidential Opinion,
01 -005; McCarrier /Anderson, Opinion 98 -008; Warso, Order 974.
You are advised that absent some basis for a conflict of interest such as a private
pecuniary benefit to you, a member of your immediate family, or a business with which
you or a member of your immediate family is associated, you would not have a conflict
of interest under Section 1103(a ) of the Ethics Act with regard to voting as a Member of
the [governing body of Political Subdivision B] on: (1) a written P or Q between Political
Subdivision B and Political Subdivision D that would formalize Political Subdivision D's
R on Political Subdivision B property; or (2) a formal contract between Political
Subdivision B and Political Subdivision , concerning the use of Political Subdivision D's
Ks and employees during [certain events].
You are advised that per Commission precedent, in your capacity as a Member
of the [governing body of Political Subdivision B], you would have a conflict of interest
under Section 1103(a) of the Ethics Act with regard to the N, F, or O of G(s) of the
Political Subdivision D H due to your status as a Political Subdivision D employee. Cf.,
scitations]. You would have a conflict of interest with regard to the E of Political
ubdivision D to the extent your action would favor T Political Subdivision D, and
consequently your employment as the C of Political Subdivision D. You are further
advised that you would have a conflict of interest as to vote(s) of the [governing body of
Political Subdivision B] on other matters) pertaining to Political Subdivision D and/or
your employment as the C of Political Subdivision D if: (1) you would be consciously
aware of a private pecuniary benefit for you, a member of your immediate family, or a
business with which you or a member of your immediate family is associated; (2) your
action(s) would constitute one or more specific steps to attain that benefit; and (3)
neither of the statutory exclusions to the definition of `conflict" or "conflict of interest" as
set forth in the Ethics Act, 65 Pa.C.S. § 1102, would be applicable. Cf. Kistler, supra.
Subject to the voting conflict exceptions of Section 11030) of the Ethics Act, you
would be required to abstain fully from participation in each instance of a conflict of
interest. The exception for breaking a tie vote despite a conflict is available exclusively
to members of three -- member governing bodies who first abstain and disclose their
conflicts as required by Section 11030) of the Ethics Act. See, Garner, Opinion 93 -004;
Pavlovic, Opinion 02 -005. Because the [governing body of Political Subdivision B]
consists of three Members, Section 1103(j) would permit you to vote to break a tie if the
other two Political Subdivision B As wouldd cast opposing votes on a matter in which you
would have a conflict of interest, provided that you would initial! 1 abstain from the
vote, 2 fully satisfy the disclosure re uirements o ection 1103 ot the Ethics
Act. However, in voting to break a tie vote, you could not otherwise use the authority o
office, such as by advocating your view, in the matter.
Confidential Advice, 17 -505
February 8, 2017
Page 6
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 U or the M.
Conclusion: As an A for Political Subdivision B, you are a public official subject
tote provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. 1101 et seq. As the C of Political Subdivision D, you are a public
official /pudic employee subject to the provisions of the Ethics Act. Based upon the
submitted facts, you are advised as follows.
Since Political Subdivision D is a "political subdivision" and not a "business" as
defined by the Ethics Act, you would not have a conflict of interest under Section
1103(a) of the Ethics Act in matters before the [governing body of Political Subdivision
B] that would financially impact Political Subdivision D but that would not financially
impact you, a member of your immediate family, or a business with which you or a
member of your immediate family is associated. A pecuniary benefit flowing solely to a
governmental entity such as Political Subdivision D would not form the basis for a
conflict of interest under Section 1103(a) of the Ethics Act.
Absent some basis for a conflict of interest such as a private pecuniary benefit to
you, a member of your immediate family, or a business with which you or a member of
your immediate family is associated, you would not have a conflict of interest under
Section 1103(a) of the Ethics Act with regard to votingg as a Member of the [governin
body of Political Subdivision B] on: (1) a written P or Q between Political Subdivision B
and Political Subdivision D that wouldd formalize Political Subdivision D's R on Political
Subdivision B property; or (2) a formal contract between Political Subdivision B and
Political Subdivision D concerning the use of Political Subdivision D's Ks and
employees during [certain events].
In your capacity as a Member of the [governing body of Political Subdivision B],
you would have a conflict of interest under Section 1103(x) of the Ethics Act with regard
to the N, F, or O of G(s) of the Political Subdivision D H due to your status as a Political
Subdivision D employee. You would have a conflict of interest with regard to the E of
Political Subdivision D to the extent your action would favor T Political Subdivision D,
and consequently your employment as the C of Political Subdivision D. You would have
a conflict of interest as to vote(s) of the [governing body of Political Subdivision B on
other matter(s) pertaining to Political Subdivision D and /or your employment as the C of
Political Subdivision D if: (1) you would be consciously aware of a private pecuniary
benefit for you, a member OT your immediate family, or a business with which you or a
member of your immediate family is associated; your actions) would constitute one
or more specific steps to attain that benefit; and ( �2) ) neither of the statutory exclusions to
the definition of "conflict" or "conflict of interest" as set forth in the Ethics Act, 65 Pa.C.S.
§ 1102, would be applicable.
Subject to the voting conflict exceptions of Section 11030) of the Ethics Act, you
would be required to abstain fully from participation in each instance of a conflict of
interest. The exception for breaking a tie vote despite a conflict is available exclusively
to members of three - member governing bodies who first abstain and disclose their
conflicts as required by Section 11030) of the Ethics Act. Because the [governing body
of Political Subdivision B] consists of three Members, Section 11030) would permit you
to vote to break a tie if the other two Political Subdivision B As would cast opposing
votes on a matter in which you would have a conflict of interest, provided that you would
initially: 1 abstain from the vote and 2 fullv satisfv the disclosure re uirements of
Section 11 03(1) of the Ethics Act. However, in voting to break a tie vote, you could not
otherwise use the authority office, such as by advocating your view, in the matter.
Confidential Advice, 17 -505
February 8, 2017
Page 7
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 actually
received at the Commission within thirty (30) days of the date oft?
vice pursuant to 51 Pa. Code § 13.2(h). The appeal may be
received at the Commission by hand delivery, United States marl,
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,
r
obin M. Hittie
Chief Counsel