HomeMy WebLinkAbout17-559 WindischSTATE ETHICS COMMISSION
309 FINANCE BUILDING
PO. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
(717) 783 -1610
1 -800- 932 -0936
ADVICE OF COUNSEL
August 18, 2017
To the Requester:
Mr. Harold Windisch
Dear Mr. Windisch:
17 -559
This responds to our letter dated July 21, 2017, 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
7577S. § 1101 et seq., would impose prohibitions or restrictions upon an individual (the
"Individual ") employed as a Senior Civil Engineer Manager with the Pennsylvania
Department of PennDOT ( "PennDOT ") with regard to starting a GoFundMe campaign in
the name of a member of the Individual's immediate family (the Individual's "Immediate
Family Member ") in order to help with the �Jqment of medical expenses of the
Individual's Immediate Family Member, where: donors to the GoFundMe campaign
would be people or organizations which know the Individual's Immediate Family
Member; and (2) such donors might include firms with which the Individual works in the
performance of his job duties with PennDOT.
Facts: You request an advisory from the Commission based upon submitted
ac— s1hat may be fairly summarized as follows.
You are currently employed as a Senior Civil Engineer Manager with PennDOT
in District 6 -0. You have submitted a copy of your official Commonwealth position
description, which document is incorporated herein by reference. A copy of the job
classification specifications for the position of Senior Civil Engineer Manager (job code
11'161) has been obtained and is also incorporated herein by reference.
You would like to start a GoFundMe campaign in the name of a member of your
"immediate family" as that term is defined in the Ethics Act (hereinafter referred to as
your "Immediate Family Member ") in order to help with the payment of medical
expenses of your. Immediate Family Member. All proceeds raised ,through the
GoFundMe campaign would go toward payment of such medical expenses. You state
that donors to the GoFundMe campaign would be people or organizations which know
your Immediate Family Member and that such donors migght include firms with which
you work in the performance of your job duties with PennDOT.
PAX: (717) 787 -0806 a Web Site: www.ethics.state.pa.us e -mail: ethicsC�state.pa.us
Windisch, 17 -559
August 18, 2017
Page 2
Based upon the above submitted facts, you ask whether the Ethics Act would
impose prohibitions or restrictions upon you with regard to starting a GoFundMe
campaign in the name of your Immediate Family Member to help with the payment of
medical expenses of your Immediate Family Member.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
e ics ct, 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 en age in an
independent investigation of the facts, nor does it speculate as to facts tha? 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.
As a Senior Civil Engineer Manager for PennDOT, you are a public employee
subject to the provisions of the Ethics Act. See, Pa.C.S. § 1102; 51 Pa. Code § 11.1;
Parikh, Advice 16 -531; Evanko, Advice 13 -578; Smallman, Advice 13 -557. This
concision is based upon the position description and the job classification
specifications, which when reviewed on an objective basis, indicate clearly that the
power exists to take or recommend official action of a non - ministerial nature with
respect to one or more of the following: contracting; procurement; administering or
monitoring grants or subsidies; planning or zoning; inspectin g; licensing; regulating;
auditing; or other activity(ies) where the economic impact is greater than de minimis on
the interests of another person.
Section 1103(a) of the Ethics Act provides:
§ 1103. Restricted activities
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
65 Pa.C.S. § 1103(a).
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
Windisch, 17 -559
u8, 2017
Page 3
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 officelemployment 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 officiallpublic employee would
be required to abstain from participation. The abstention requirement 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.
It is noted that the above statutory definition of the term "conflict" or "conflict of
interest" contains, in pertinent part, an exclusion referred to herein as the "de minimis
exclusion."
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.
The Commission has determined the app�bility of the de minimis exclusion on a
case -by -case basis, considering all relevant circumstances. In the past, the
Commission has found amounts ranging from $2 to approximately $1,300 to be de
minimis. See, Bixler v. State Ethics Commission, 847 A.2d 785 (Pa. Cmwlth. 2004).
Per Commission precedent, the Ethics Act does not prohibit a public
official/public employee from accepting "no- strings - attached" ifts, transportation,
lodging or hospitality (also generically referred to herein as "items' from a donor. Cf.,
Co oper, Opinion 92 -009. However, such items) received by a public official/public
employee may form the basis for a conflict of interest pursuant to Section 1103(a) of the
Ethics Act if the public official/public employee takes action in furtherance of the
interests of the donor. While the receipt of an item of de minimis value would not, in
and of itself, create a conflict of interest as to action involving the donor (see, e.g_,
Cohen, Opinion 03 -006; Stieh, Advice 93- 503), the decision as to whether a conflict of
interest is presented by treceipt of item(s) is determined on a case -by -case basis.
Generally, when a public official or public employee has received item(s) that would
form the basis for a conflict of interest under the Ethics Act, the public official/public
employee must abstain from acting in matters pertaining to the donor.
Re ardless of whether a conflict of interest exists, depending upon the value of
the item(s� received, the public official or public employee may be required to disclose
his receip of such item(s)on his Statement of Financial Interests pursuant to Sections
1104 and 1105 of the Ethics Act, 65 Pa.C.S. §§ 1104, 1105. Subject to certain statutory
exceptions not applicable to this matter, Section 1105(b)(6) of the Ethics Act requires
the filer to disclose on the Statement of Financial Interests the name and address of the
source and the amount of any gift or gifts valued in the aggregate at $250 or more and
the circumstances of each gift
Windisch, 17 -559
August 18, 2017
Page 4
In addition, Sections 1103(b) and 1103(c) of the Ethics Act, 65 Pa.C.S. §§
1103(b), (c), provide in part that no person shall offer or give to a public official /pub is
employee anything of monetary value and no public official /public employee shall solicit
or accept anything of monetary value based upon the understanding that the vote,
official action, or judgment of the public official /public employee would be influenced
thereby. Reference is made to these provisions of the law not to imply that there has
been or will be any transgression thereof but merely to provide a complete response to
the question presented.
Having set forth the above principles, you are advised as follows.
Section 1103(a) of the Ethics Act, pertaining to conflict of interest, imposes
restrictions upon public officials and public employees: Section 1103(a) of the Ethics
Act would impose restrictions upon you in your capacity as a public employee, rather
than upon you in your private capacity. Therefore, Section 1103(a) would not prohibit
you from acting in your private capacity to start a GoFundMe campaign in the name of
your Immediate Family Member to help with the payment of medical expenses of your
Immediate Family Member.
You are further advised that donations to a GoFundMe campaign to pay medical
expenses of your Immediate Family Member for which you could have legal
responsibility would generally constitute gifts to you. Cf., Corey, Opinion 08 -005. Per
Commission precedent, where a firm with which you Piave involvement in your public
capacity as a Senior Civil Engineer Manager for PennDOT would make donation(s) to
the GoFundMe campaign that would constitute gift(s) to you: (1) unless the value of
such giftVthe would be de minimis, you could have a conflict of interest under Section
1103(a) Ethics Act in matter(s) before PennDOT involving such firm; and (2)
dependding upon the value of such gift(s), you may be required to disclose such gift s
on your Statements of Financial Interests filed pursuant to the Ethics Act. Cf., Carey,
supra; Cohen, supra. As noted above, in each instance of a conflict of interest, you
would be required to abstain from participation.
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 Governor's Code of Conduct and any gift restrictions imposed by the Governor; it is
recommended that you obtain legal advice in that regard.
Conclusion: As a Senior Civil Engineer Manager for the Pennsylvania
epa rn of Transportation ( "PennDOT "), you are a public employee subject to the
provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §
1101 et se9c. Based upon the submitted facts that: (1) you are currently employed with
PennOUT- in District 6 -0; (2) you would like to start a GoFundMe campaign in the name
of a member of your "immediate family" as that term is defined in the Ethics Act
(hereinafter referred to as your "Immediate Family Member ") in order to help with the
payment of medical expenses of your Immediate Family Member; (3) all proceeds
raised through the GoFundMe campaign would go toward payment of such medical
expenses; and (4) donors to the GoFundMe campaign would be people or organizations
which know your Immediate Family Member, and such donors might include firms with
which you work in the performance of your job duties with PennDOT, you are advised
as follows.
Section 1103(x) of the Ethics Act, pertaining to conflict of interest, imposes
restrictions upon public officials and public employees. Section 1103(a) of the Ethics
Act would impose restrictions upon you in your capacity as a public employee, rather
than upon you in your private capacity. Therefore, Section 1103(a) would not prohibit
you from acting in your private capacity to start a GoFundMe campaign in the name of
Windisch, 17 -559
August 2017
Page 5
your Immediate Family Member to help with the payment of medical expenses of your
immediate Family Member.
Donations to a GoFundMe campaign to pay medical expenses of your Immediate
Family Member for which you could have legal responsibility would generally constitute
gifts to you. Where a firm with which you have involvement in your public capacity as a
Senior Civil Engineer Manager for PennDOT would make donation(s) to the GoFundMe
campaign that would constitute gift(s) to you: (1) unless the value of such gift(s) would
be de minimis, you could have a conflict of interest under Section 1103(a) of the Ethics
Act in matter(s) before PennDOT involving such firm; and (2) depending upon the value
of such gift(s), you may be required to disclose such gifts) on your Statements of
Financial interests filed pursuant to the Ethics Act. In each instance of a conflict of
interest, you would be required to abstain from participation.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act. Specifically not addressed herein is the applicability of the Governor's Code
of Conduct and any gift restrictions. imposed by the Governor, it is recommended that
you obtain legal advice in that regard.
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 actu�all
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,
. 77
Robin M. Hittie
Chief Counsel