HomeMy WebLinkAbout17-571 McAndrewi
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STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
(717) 783 -1610
1 -800- 932 -0936
ADVICE OF COUNSEL
October 19, 2017
To the Requester:
Mr. Joseph M. McAndrew
Dear Mr. McAndrew:
17 -571
This responds to your letter dated August 28, 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
ENcs Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., an individual who would be elected
as a borough mayor would have a conflict ofnterest with regard to scheduling borough
police officers to maintain public safety at two community events managed by the local
chamber of commerce, if the individual would become employed as the executive
director of the local chamber of commerce.
Facts: You request an advisory from the Commission based upon submitted
athe material portion of which may be fairly summarized as follows.
You are seeking election as Mayor of the Borough of Oakmont ( "Borough "). You
state that your primary role as Borough Mayor would be to manage the Borough Police
Department, which would include scheduling Borough police officers to maintain public
safety at community events. You state that the Borough Mayor does not manage other
Borough operations or hire Borough employees.
You were recently offered the position of Executive Director of the local chamber
of commerce "Chamber "). In the aforesaid position, you would manage the day -to -day
operations of the Chamber, set u monthly networking events for business owners in
the Chamber, and manage two of the community's largest events each year, namely the
Oakmont Street Sale and the Oakmont Hometown Christmas Parade (the Two
Community Events"). On behalf of the Chamber, you would be responsible for
scheduling the Two Community Events, confirming participants in the Two Community
Events, and working with the Borough to shut down the Borough's main street and have
a police presence at the Two Community Events for public safety concerns. There is no
paid admittance to the Two Community Events.
The Chamber is a non - profit entity, and there are no existing contracts between
the Chamber and the Borough.
FAX: (717) 787 -0806 0 Web Site: www.ethics,state.pa.us 0 e -mail: ethics(@state.pa.us
McAndrew, 17 -571
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Based upon the above submitted facts, the question that.is presented is whether,
if you would be elected as Borough Mayor, the Ethics Act would impose prohibitions or
restrictions upon you with regard to scheduling Borough police officers to maintain
public safety at the Two Community Events.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
to 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.
If you would be elected as Borough Mayor, upon assuming said position, you
would in that capacity be a public official subject to the provisions of 1he 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
bodyy of a political subdivision, where one member has
abs #ained 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 employee of the authority of his office or
McAndrew, 17 -571
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Page 3
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
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.
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
conflict, Section 1103(j) 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.
Per the Pennsylvania Supreme Court's decision in Kistler v. State Ethics
Commission, 610 Pa. 516, 22 A.3d 223 (2011), in order to violate Section 1 03 a o the
Ethics Act, a public official/public 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.
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Kistler, supra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics
Act, public officiallpublic 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.
Section 1103(a) of the Ethics Act, pertaining to conflict of interest, imposes
restrictions upon public officials and public employees. If you would be elected as
Borough Mayor, Section 1103(a) of the Ethics Act would impose restrictions upon you in
your capacity as a public official, rather than upon you in your private capacity.
Therefore, Section 1103(a) of the Ethics Act would not prohibit you from being
employed as the Executive Director of the Chamber while serving as Borough Mayor.
If you would become employed as the Executive Director of the Chamber, the
Chamber would be considered a business with which you are associated in your
capacity as an employee.
You would not have a conflict of interest and would not violate Section 1103(a) of
the Ethics Act as Borou Mayor by scheduling Borough police officers to maintain
public safety at the Two Community Events unless: (1) you would be conscious) aware
of a private pecuniary benefit for yourself or the Chamber; (2) your action(s� would
constitute one or more specific steps to attain that benefit; and (3) neither the de
minimis exclusion nor 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.
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. Specifically not addressed herein is the applicability of
the Borough Code.
Conclusion; Based upon the submitted facts that: (1) you are seeking election
ass al�r of the Borough of Oakmont ( °Borough "); (2) your primary role as Borough
Mayor would be to manage the Borough Police Department, which would include
scheduling Borough police officers to maintain public safety at community events; (3)
the Borough Mayor does not manage other Borough operations or hire Borough
employees; (4) you were recently offered the position of Executive Director of the local
chamber of commerce ( "Chamber "); (5) in the aforesaid position, you would manage the
day-to -day operations of the Chamber, set up monthly networking events for business
owners in the Chamber, and manage two of the community's largest events each year,
namely the Oakmont Street Sale and the Oakmont Hometown Christmas Parade (the
"Two Communit y Events "); (6) on behalf of the Chamber, you would be responsible for
scheduling the Two Community Events, confirming participants in the Two Community
Events, and working with the Borough to shut down the Borough's main street and have
a police presence at the Two Community Events for public safety concerns; (7) there is
no paid admittance to the Two Community Events; and (8) the Chamber is a non- profit
entity, and there are no existing contracts between the Chamber and the Borough, you
are advised as follows.
If you would be elected as Borough Mayor, upon assuming said position, you
would in that capacity be a public official subject to the provisions of the Public Official
McAndrew, 17 -571
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Page 5
and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et sec. Section 1103(a) of
the Ethics Act, pertaining to conflict of interest, imposes restrictions upon public officials
and public employees. if you would be elected as Borough Mayor, Section 1103(x) of
the Ethics Act would impose restrictions upon you in your capacity as a public official,
rather than upon you in your private capacity. Therefore, Section 1103(a) of the Ethics
Act would not prohibit you from being employed as the Executive Director of the
Chamber while serving as Borough Mayor.
If you would become employed as the Executive Director of the Chamber, the
Chamber would be considered a business with which you are associated in your
capacity as an employee. You would not have a conflict of interest and would not
violate Section 1103(a) of the Ethics Act as Borough Mayor by scheduling Borough
police officers to maintain public safety at the Two Community Events unless: (1) you
would be consciously aware of a private pecuniary benefit for yourself or the Chamber;
ryour action(s) would constitute one or more specific steps to attain that benefit; and
3 neither the de minimis exclusion nor the class /subclass exclusion set forth within the
�hics 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 an
yy
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 actually
received at the Commission within thirt (30) days of the date of this
vice pursuant to 51 ' Pa. Code § x3.2(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.
Sinc ely,
'WCO�
Robin M. Hittie
Chief Counsel