HomeMy WebLinkAbout11-533-S ConfidentialSTATE ETHICS COMMISSION
309 FINANCE BUILDING
PO. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1 -800- 932 -0936
ADVICE OF COUNSEL
April 21, 2017
To the Requester:
11 -533 -S
This responds to your letter dated February 27, 2017, by which you requested
supplemental advice from the Pennsylvania State Ethics Commission ( "Commission ").
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa. -S. § 1101 et , eg., would impose prohibitions or restrictions upon an A with regard
to participating in discussions, votes, or other actions of the B as to land development
plans, permit requests /approvals, or other proposals /issues involving an educational
institution that is a customer of a business in which the A's spouse is a partner.
Facts: You are an A for [name of political subdivision] ( "the Political Subdivision "),
o-ca ed in [name of county], Pennsylvania. By letter dated May 2, 2011, you submitted
an initial request for an advisory from the Commission. In response to your initial
advisory request, Confidential Advice, 11 -533 was issued to you on June 24, 2011.
Confidential Advice, 11 -533 was based upon submitted facts that were
summarized, in pertinent part, as follows:
There are several post- secondary educational facilities
located within the Political Subdivision, including ... [name of
educational institution] ( "Institution 2 ")....
Land development plans, park use agreements, and
other similar requests and proposals from the
aforementioned educational institutions periodically come
before the Political Subdivision B for authorization or
approval....
Your spouse is a partner in a privately held company
named [name of company] ( "the Company }, located near
name of municipality], Pennsylvania. The Company sells
type of equi ment] (hereinafter referred to as "Equipment "),
primarily for certain uses], to [various types of customers] all
FAX: (717) 787 -0806 a Web Site: www.ethics.state.pa.us 0 e -mail: ethics cx state.pa.us
Confidential Advice, 11 -533 -S
April
Page 2
over the United States. The Company sells Equipment via
the internet or telephone, at a retail store located at the
Compan 's headquarters, and in person to individuals at
various ype of events]. The total of all Company sales in
the Political Subdivision is less than [fraction of one percent]
of the Company's total annual sales of approximately
[amount].
The Company sells Equipment to ... Institution 2....
The Company sells approximately [amount] to
[amount] in Equipment annually to Institution 2.
Based upon the above submitted facts, you ask
whether the Ethics Act would permit you to participate in
discussion(s) or vote(s) by the B as to the following matters:
(3) A land development plan: permit request, or
other proposal from Institution 2;
Confidential Advice, 11 -533, at 1 -2.
Confidential Advice, 11 -533 determined that as an A for the Political Subdivision,
you are a public offic—V subject to the provisions of the Ethics Act. The Advice
concluded, in pertinent part, as follows:
The Company is a business with which your spouse is
associated in his capacity as an owner. Subject to the
statutory exclusions to the definition of "conflict" or "conflict
of interest" as set forth in the Ethics Act, 65 Pa.C.S. § 1102,
pursuant to Section 1103(a) of the Ethics Act, you would
have a conflict of interest in matters before the B that would
financially impact you, your spouse, or the Company. A
matter before the B involving a customer/client of the
Company could present a conflict of interest for you under
the Ethics Act. In order to violate Section 1103a) of 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."
Kistler v. State Ethics Commission, No. 59 MAP 2009, slip
op. at 12 a, June 22, 20
You would not have a conflict of interest as to a
customer/client from which the Company would receive only
a de minimis (insignificant) financial benefit. For a
customer/client involved in multiple transactions, the
aggregate financial benefit received from such transactions
should be considered in order to determine whether the de
minimis exclusion could have applicability....
Confidential Advice, 11 -533 -S
Aril Page 3
Based upon the limited submitted facts, you are
advised that you would have a conflict of interest and would
transgress Section 1103(a) of the Ethics Act by participating
in discussion(s) or vote(s) by the B as to: (1) a land
development plan, permit request, or other proposal from ...
Institution 2 ... if you would be consciously aware of a
private pecuniary benefit for yourself, your family, or the
Company, and your official action would constitute one or
more specific steps to attain that benefit....
In each instance of a conflict of interest, you would be
required to abstain from participation, which would include
vot,n unless one of the statutory exceptions of Section
1103) 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.
Confidential Advice, 11 -533, at 6 -7.
In yyour February 27, 2017, advisory request letter, you seek guidance as to
whether tF�e Ethics Act would permit you to participate in discussions, votes or other
actions of the B as to land development plans, permit requestslapprovals, or other
proposals /issues involving Institution 2. You state that the underlying facts remain
essentially the same as those set forth in your initial advisory request, with the
exceptions that: (1) the sales made by the Company to Institution 2 have increased to
approximately [amount] annually; and (2) Institution 2 has substantial expansion plans
in progress in the Political Subdivision and more planned for the future.
Discussion: It is initially 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 disclosed all of the material facts.
This Supplemental Advice incorporates herein by reference the quotations,
citations and commentary as to the Ethics Act set forth within Confidential Advice, 11-
533.
In considering the additional submitted facts, you are advised as follows.
As an A for the Political Subdivision, you are a public official subject to the
provisions of the Ethics Act.
The Company is a business with which your spouse is associated in his capacity
as an owner and partner. Subject to the statutory exclusions to the definition of
conflict or conflict of interest as set forth in the Ethics Act, 65 Pa.C.S. § 1102,
pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest in
matters before the Political Subdivision B that would financially impact you, your
spouse, or the Company.
You would have a conflict of interest and would transgress Section 1103(a) of the
Ethics Act by participating in discussion(s), vote(s), or other action(s) of the B as to land
development plans, permit requests /approvals, or other proposals/issues involving
Confidential Advice, 11 -533 -S
7
Page 4
Institution 2 if: (1) you would be consciously aware of a private pecuniary benefit for
you, a member of your immediate family such as your spouse, or the Company; (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 v. State
Ethics Commission, 610 Pa. 516, 22 A.3d 223 (2011).
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 roppriety of the proposed conduct has only been addressed under the Ethics
Act. Specifically not addressed herein is the applicability of the C.
Conclusion: As an A for name of political subdivision] "the Political
Subdivision"), located in [name of county], Pennsylvania, 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 sseq. Based upon the additional submitted facts that: (1) the sales
made by (name of company ( "the Company" to [name of educational institution
( "Institution 2 ") have increase�to approximately amount] annually; and (2) Institution 2-
has substantial expansion plans m rogress in the Political Subdivision and more
planned for the future, you are advised as follows.
The Company is a business with which your spouse is associated in his capacity
as an owner and partner. Subject to the statutory exclusions to the definition of
"conflict" or "conflict of interest" as set forth in the Ethics Act, 65 Pa.C.S. § 1102,
pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest in
matters before the Political Subdivision B that would financially impact you, your
spouse, or the Company.
You would have a conflict of interest and would transgress Section 1103(a) of the
Ethics Act by participating in discussion(s), vote(s), or other action(s) of the B as to land
development plans, permit requestslapprovals, or other proposals /issues involving
Institution 2 if: (1) you would be consciously aware of a private pecuniary benefit for
you, a member of your immediate family such as your spouse, or the Company; (2) our
act►on(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. 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
Commission. A personal appearance before the Commission will be
scheduled and a formal Opinion will be issued by the Commission.
Confidential Advice, 11 -533 -S
April 21, 2017
Page 5
Any such appeal must be in writingg and must be actually
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,
Robin M. Hittie `
Chief Counsel