HomeMy WebLinkAbout17-550 FersonSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 -932 -0936
ADVICE OF COUNSEL
August 3, 2017
To the Requester:
Ms. Barbara Ferson
Dear Ms. Ferson:
17 -550
This responds to your letter dated June 19, 2017, by which you requested an
advisory from the Pennsylvania State Ethics Commission ( "Commission ").
Issue: Whether, pursuant to Section 1103(x) of the Public Official and Employee
EF s Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., an individual who would be elected
as a borough council member would have a conflict of interest with regard to performing
the duties of her public position, where: (1) the individual's husband is employed as a
police officer for the borough; (2) the individual's father -in -law is a public works
employee for the borough; and (3) the individual's son is an on -call warden for the
borough.
Facts: You request an advisory from the Commission based upon the following
suBmitted facts.
You are seeking election as a Member of Council for West Homestead Borough
�"ather-in-law Borough "). Your husband is employed as a police officer for the Borough. Your
is a public works employee for the Borough. Your son is an on -call warden
for the Borough.
The question that is presented is whether, if you would be elected as a Borough
Council Member, the Ethics Act would impose prohibitions or restrictions upon you with
regard to performing the duties of your public position.
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 disc osed all of the material facts.
FAX: (717) 787 -0806 0 Web Site: www.ethics.state.pa.us 0 e -mail: eth.jcs(@.state,pa.us
Person, 17 -550
u� 3, 2017
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If you would be elected as a Borough Council Member, upon assuming said
position, 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
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), (j).
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.
Ferson, 17 -550
August 3, 2017
Page 3
"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.
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 bv 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 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
conflict, 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.
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; Schweinsburg, Order 900.
In order for the class/subclass exclusion to app two 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
exclu an 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.
In ap lying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
Your husband and your son are members of your "immediate family" as that term
is defined in the Ethics Act. 65 Pa.C.S. § 1102. Your father -in --law is not a member of
Ferson, 17 -550
August 3, 2017
Page 4
your "immediate family" as that term is defined in the Ethics Act. Cf., Pulice v. State
Ethics Commission, 713 A.2d 161 (Pa. Cmwlth. 1998), allocatur de in , 557 Pa. 642,
732 A.2d 121T-T!9198) (Holding that a relative not encompass —by the family
relationships listed in the Ethics Act's definition of the term "immediate family " —in that
case, a son -in- law —would not be considered a member of immediate family).
Upon taking office as a Borough Council Member, you would have a conflict of
interest in matters that would financially impact you, member(s) of your immediate
family such as your husband or son, or a business with which you or a member of your
immediate family is associated unless the de minimis exclusion or the class/subclass
exclusion 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.
The propriety of the proposed conduct has only been addressed under the Ethics
Act; the applicabil�t of any other statute, code, ordinance, regulation or other code of
conduct other than he 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 seeking election
as a Mem er of Council for West Homestead Borough (" Borough"); (2) your husband is
employed as a police officer for the Borough; (3) your father -in -law is a public works
employee for the Borough; and (4) your son is an on -call warden for the Borough, you
are advised as follows.
If you would be elected as a Borough Council Member, upon assuming said
position, 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. Your
husband and your son are members of your "immediate family" as that term is defined
in the Ethics Act. Your father -in -law is not a member of your "immediate family" as that
term is defined in the Ethics Act. Upon taking office as a Borough Council Member, you
would have a conflict of interest in matters that would financially impact you, member(s)
of your immediate family such as your husband or son, or a business with which you or
a member of your immediate family is associated unless the de minimis exclusion or the
class/subclass exclusion contained within the Ethics Act's definition of the term "conflict"
or "conflict of interest," 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.
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Any such appeal must be in writingg and must be actual)
received at the Commission within thirty (30) days of the date oftF s
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