HomeMy WebLinkAbout17-586 FajtPHONE: 717- 783 -1610
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ADVICE OF COUNSEL
December 27, 2017
To the Requester:
Mr. Gregory C. Fajt, Esquire
Dear Mr. Fajt:
FACSIMILE: 717- 787 -0806
WEBSITE: wwwmthics.pa.gov
17 -586
This responds to your letter dated November 22, 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
Ethic Eths Act ( "Ethics Act'), 65 Pa.C.S. § 1103(a), an individual serving as the Citizen
Member of the Board of Claims of the Commonwealth of Pennsylvania ( "Board of
Claims ") would have a conflict of interest with regard to performing the duties of his
public position, where the individual in a private capacity Is: (1) an attorney, and (2) a
part-time consultant for a government affairs consulting and business development firm.
Facts: You request an advisory from the Commission based upon submitted
ac s, the material portion of which may be fairly summarized as follows.
On October 18, 2017, you were sworn into office as the Citizen Member of the
Board of Claims, which is an independent administrative board. The Board of Claims
has jurisdiction to hear and determine claims against the Commonwealth arising from
contracts entered into by the Commonwealth.
In a private capacity, you are an attorney licensed to practice law in
Pennsylvania. You work part-time as a consultant for the Carey Group ( "the Firm "),
which is a full- service government affairs consulting and business development firm
located in Pittsburgh, Pennsylvania. You receive a monthly stipend from the Firm and
do not share in the Firm's profits or participate in its health benefits or pension plan. An
IRS Form 1099 -MISC (Miscellaneous Income) is issued to you for your annual
compensation from the Firm.
The Firm has both business and political clients. In your current work with the
Firm, you use your personal contacts to Introduce the Firm's business clients to other
businesses in western Pennsylvania and county and municipal officials with which such
clients desire to do work. You use your political contacts In western Pennsylvania to
make introductions for the Firm's political clients and drive support to them, and you do
some limited fundraising for political candidates. Although you are not a registered
lobbyist in Pennsylvania, you do some federal advocacy /lobbying work for a Pittsburgh -
based financial institution, most of which work takes place in Ohio, Michigan, and
Colorado. You state that you do not personally do any work for any Pennsylvania state
agencies or the administration of Governor Tom Wolf and that you do not currently and
do not intend to represent any Firm clients before the aforesaid Commonwealth entities.
Fait, 17 -586
December 27, 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 performing the duties of your
position as the Citizen Member of the Board of Claims.
Discussion: It is initiall y 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.
As the Citizen Member of the Board of Claims, you are 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), 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
Fa't, 17 -586
December 27, 2017
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 officiallpublic 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 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 03(a o the
Ethics Act, a public official/public employee:
... must act in such a way as t
to the purpose of obtaining f
benefit. Such directed action
of the [public official/public
pecuniary benefit as well as
benefit for himself.
put his office /public position]
)r himself a private pecuniary
implies awareness on the part
employee] of the potential
the motivation to obtain that
Fa't, 17 -586
December 27, 2017
Page 4
Kistler, supra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics
cctt, 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." Id., 610 Pa. at 528, 22 A.3d at 231.
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 officiallpublic
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 established the above general principles, you are advised as follows.
Under the submitted facts, the Firm is not a business with which you are
associated because you are not a director, officer, owner, employee, or holder of a
financial interest in the Firm.
In your public capacity as the Citizen Member of the Board of Claims, you would
not have a conflict of interest under Section 1103(a) of the Ethics Act as to
discussion(s), vote(s), and/or other official action(s) unless: (1) you would be
consciously aware of a private ecuniary benefit for yourself, member(s) of your
immediate family, or business(es with which you or member(s) of your immediate
family are associated; 2) your action s) would constitute one or more specific steps to
attain that benefit; an � {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. Cf. Kistler, supra.
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 Commonwealth Procurement Code or the Rules of Professional Conduct.
Conclusion: Based upon the submitted facts that: (1) on October 18, 2017, you
were sworn into office as the Citizen Member of the Board of Claims of the
Commonwealth of Pennsylvania ( "Board of Claims "), which is an independent
administrative board; (2) the Board of Claims has jurisdiction to hear and determine
claims against the Commonwealth arising from contracts entered into by the
Commonwealth; (3) in a private capacity, you are an attorney licensed to practice law in
Pennsylvania; (4) you work part-time as a consultant for the Carey Group ( "the Firm "),
which is a full- service government affairs consulting and business development firm
located in Pittsburgh, Pennsylvania; (5) you receive a monthly stipend from the Firm
and do not share in the Firm's rofits or participate in its health benefits or pension plan;
(6) an IRS Form 1099 -MISC Miscellaneous Income} is issued to you for your annual
compensation from the Firm; the Firm has both business and political clients, 8 in
our current work with the Firm, you use your personal contacts to introduce the Firm's
business clients to other businesses in western Pennsylvania and county and municipal
officials with which such clients desire to do work; (9) you use your political contacts in
western Pennsylvania to make introductions for the Firm's political clients and drive
support to them, and you do some limited fundraising for political candidates; (10)
Fat, 17 -586
December 27, 2017
Page 5
although you are not a registered lobbyist in Pennsylvania, you do some federal
advocacy /lobbying work for a Pittsburgh -based financial institution, most of which work
takes place in Ohio, Michigan, and Colorado; and (11) you do not personally do any
work for any Pennsylvania state agencies or the adminiration of Governor Tom Wolf,
and you do not currently and do not intend to represent any Firm clients before the
aforesaid Commonwealth entities, you are advised as follows.
As the Citizen Member of the Board of Claims, 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 seq. Under the submitted facts, the Firm is not a business with which you are
associated because you are not a director, officer, owner, employee, or holder of a
financial interest in the Firm.
In your public capacity as the Citizen Member of the Board of Claims, you would
not have a conflict of interest under Section 1103(a) of the Ethics Act as to
discussion(s), vote(s), and/or other official action(s) unless: (1) you would be
consciously aware of a private pecuniary benefit for yourself, member(s) of your
immediate family, or business(es) with which you or member(s) of your immediate
family are associated; (2) our action(s) would constitute one or more specific steps to
attain that benefit; and ( ) 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. 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 re uester 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 writing and must be actuall
o
received at the Commission within thirty (30) days of the date f this
Advice pursuant to 51 Pa. Code § if3.2(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.
Si, nc ly, -M.V d,
a
Robin M. Hittie
Chief Counsel