HomeMy WebLinkAbout18-503 BadsonPHONE: 717 -783 -1610
TOLL FREE: 1- 800 -932 -0936
ADVICE OF COUNSEL
January 26, 2018
To the Requester:
Mr. Andrew Babson, Ph.D.
Dear Mr. Babson:
FACSIMILE: 717- 787 -0806
WEBSITE: www.ethics.pa.00v
18 -503
This responds to your letter dated December 8, 2017, received December 13,
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
P TS. § 1101 et se g., would impose prohibitions or restrictions upon a School Director
for the Radnor Township School District ( "School District ", who in a private capacity is
employed as a lecturer at the University of Pennsylvania ('University ") Graduate School
of Education, with regard to participating in discussions or votes of the School District
School Board pertaining to a potential exchange between the School District and the
University of agreements concerning the zoning and taxation of a University -owned
property located within the School District.
Facts: As a School Director for the School District, you request an advisory from
Commission based upon submitted facts that may be fairly summarized as follows.
In a private capacity, you are employed as a lecturer at the University Graduate
School of Education. You have taught courses as a lecturer at the University on a
temporary and as- needed basis continuously since January 2012.
The University owns a property (the "Property' located near the School District
High School. The University is negotiating with the Ichool District with regard to the
development and potential tax - exempt status of the Property. The University would like
the School District's agreement not to oppose the University's request for a zoning
change for the Property in exchange for the University's agreement not to apply for tax -
exempt status for the Property if the zoning change would be approved by the
Township, which agreements are hereinafter collectively referred to as the "Zoning and
Taxation Agreements." You state that you have no knowledge as to the degree to
which the University would financially benefit from a zoning change for the Property and
that a zoning change would not financially benefit you or your family. You further state
that the University's agreement not to seek tax - exempt status for the Property would be
a significant financial benefit for the School District.
Based upon the above submitted facts, you ask whether you would have a
conflict of interest with regard to participating in discussions or votes of the School
District School Board pertaining to the potential exchange of the Zoning and Taxation
Agreements by the School District and the University, and if so, whether the "de
Babson, 18 -503
a� 26, 2018
Page 2
minimis" exclusion or the "class /subclass" exclusion set forth within the Ethics Act's
definition of "conflict" or "conflict of interest" would be applicable as to such discussions
or votes.
Discussion. It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
the 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.
As a School Director for the School District, you are a public official subject to the
provisions of the Ethics Act.
Sections 1103(a) and 11036) 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
rprovided herein. In the case of a three - member governing
od 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), Q).
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
Babson, 18 -503
January 26, 2018
Page 3
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 industryry, 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 1holding such a public position for the private pecuniary benefit
of the public officiallpic 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
coict, 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.
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 1103(a) of t e
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.
Babson, 18 -503
January 26, 2018
Page 4
Kistler, supra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics
Act, a 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 525, 22 A.3d at 231.
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 / y, 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 degree" (in no
wayy 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
exion 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.
Having established the above general principles, you are advised as follows.
The University is a business with which you are associated in your capacity as an
employee. You would have a conflict of interest and would violate Section 1103(a) of
the Ethics Act by participating in discussion(s) or vote(s) of the School District School
Board pertaining to the potential exchange of the Zoning and Taxation Agreements by
the School District and the University if: (1) you would be consciously aware of a private
pecuniary benefit for yourself or the University; (2) your action (s) would constitute one
or more specific steps to attain that benefit; and (3) neither the Cie 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.
The submitted facts are insufficient to enable a conclusive determination as to
whether the de minimis exclusion would be applicable. There is no basis in the
submitted facts upon which to conclude that 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 applicability of any other statute, code, ordinance, regulation or other code of
conduct otther 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 Public School Code.
Babson, 18 -503
January 26, 2018
Page 5
Conclusion: Based upon the submitted facts that: (1) you are a School Director
or e Radnor Township School District ( "School District "); (2) in a private capacity, you
are employed as a lecturer at the University of Pennsylvania ( "University ") Graduate
School of Education; (3) you have taught courses as a lecturer at the University on a
temporary and as- needed basis continuously since January 2012; (4) the University
owns a property (the "Property ") located near the School District High School; (5) the
University is negotiating with the School District with regard to the development and
potential tax - exempt status of the Property; (6) the University would like the School
District's agreement not to oppose the University's request for a zoning change for the
Property in exchange for the University's agreement not to apply for tax - exempt status
for the Property if the zoning change would be approved by the Township, which
agreements are hereinafter collectively referred to as the "Zoning and Taxation
Agreements "; (7) you have no knowledge as to the degree to which the University would
financially benefit from a zoning change for the Property, and a zoning change would
not financially benefit you or your family; and (8) the University's agreement not to seek
tax - exempt status for the Property would be a significant financial benefit for the School
District, you are advised as follows.
As a School Director for the School District, 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. The University is a business with which you are associated in your
capacity as an employee. You would have a conflict of interest and would violate
Section 1103(a) of the Ethics Act by participating in discussion(s) or vote(s) of the
School District School Board pertaining to the potential exchange of the Zoning and
Taxation Agreements by the School District and the University if: (1) you would be
consciously aware of a private pecuniary benefit for yourself or the University; (2) our
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.
The submitted facts are insufficient to enable a conclusive determination as to
whether the de minimis exclusion would be applicable. There is no basis in the
submitted facts upon which to conclude that 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. 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.
Babson, 18 -503
January 26, 2018
Page 6
Any such appeal must be in writingg and must be actual)
received at the Commission within thirty (30) days of the date of this
Advice ursuant to 59 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