HomeMy WebLinkAbout17-515 Shorrawf =-
STATE ETHICS COMMISSION
309 FINANCE BUILDING
?O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1 -800- 932 -0936
ADVICE OF COUNSEL
March 21, 2017
To the Requester:
Mr. Matthew Shorraw
Dear Mr. Shorraw:
17 -515
This responds to your undated letter postmarked January 18, 2017, received
January 20, 2017, by which you requested an advisory from the Pennsylvania State
Ethics Commission ( "Commission ").
Issue: Whether, pursuant to Section 1103(a) of the Public Official and Employee
ERR Act ("Ethics Act "), 65 Pa.C.S. § 1101 et se q., an individual who would be elected
to public office in the City of Monessen would have a conflict of interest with regard to
performing the duties of his public position, where the individual is employed as the
Assistant Band Director at the Monessen Middle School /High School and also serves as
President of the Monessen Amphitheater Committee.
Facts: You request an advisory from the Commission based upon the following
submitted facts.
You are employed as the Assistant Band Director at the Monessen Middle
School/High School in the Monessen City School District. You also serve as President
of the Monessen Amphitheater Committee ( "the Committee "), which is a 501(c)(3)
organization that plans events at the Monessen City Park Amphitheater.
. You are considering seeking election to public office in the City of Monessen
("City ").
The question that is presented is whether, if you would be elected to public office
in the City, the Ethics Act would impose prohibitions or restrictions upon you with regard
to performing the duties of your public position.
Discussion: It is initial) noted that pursuant to Sections 1107(10) and 1107(11) of
the s�1ct, 65 Pa.C.S. y§§ 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
FAX: (717) 787 -0806 0 Web Site: www.ethics.state. a.us 0 e -mail: ethics state. a.us
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facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10 }, (11). An advisory only affords
defense to the extent the requester has truthfully disc osed all of the material facts.
If you would be elected to public office in the City, upon assuming such office,
you would in that capacity be 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), (j).
The following terms related to Section 1103(x) 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
Shorraw, 17 -515
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Page 3
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.
"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.
"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, conferrin' with others, and lobbying for a particular result.
Juliante, Order 809. Subject to certain statutory exceptions, in each instance of a voting
co —nom 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.
In ap lying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
The Committee is a business with which you are associated in your capacity as
an officer (President). Upon taking City public office, you generally would have a
conflict of interest under Section 1103(a) of the Ethics Act in your capacity as a public
official in matter(s) that would financially impact you or the Committee.
However, since the Monessen City School District 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 your capacity as a ppublic official in matter(s)
that would financially impact the Monessen Middle SchoollHigh School and/or the
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Monessen City School District 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
the Monessen City School District 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.
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 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.
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.
Conclusion. Based upon the submitted facts that: (1) you are employed as the
Assistant and Director at the Monessen Middle School /High School in the Monessen
City School District; (2) you also serve as President of the Monessen Amphitheater
Committee ( "the Committee "), which is a 501(c)(3) organization that plans events at the
Monessen City Park Amphitheater; and 3) you are considering seeking election to
public office in the City of Monessen ( "City'), you are advised as follows.
If you would be elected to public office in the City, upon assuming such office,
you would in that capacity be a public official subject to the provisions of the Public
Official and Employee Ethics Act ( "Ethics Act ") 65 Pa.C.S. § 1101 et sec . The
Committee is a business with which you are associated in your capacity as an officer
(President). Upon taking City public office, you generally would have a conflict of
interest under Section 1103 (a) of the Ethics Act in your capacity as a public official in
matter(s) that would financially impact you or the Committee. However, since the
Monessen City School District 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 your capacity as a public official in matter(s) that would financially impact
the Monessen Middle School/High School and/or the Monessen City School District 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 the Monessen City School District would
not form the basis for a conflict of interest under Section 1103(a) of the Ethics Act.
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 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
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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 acts
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,
XRo M. Hittie
Chief Counsel