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To the Requester:
ADVICE OF COUNSEL
March 19, 2018
FACSIMILE: 717- 787 -0806
WEBSITE: www.ethics.pa.ggv
18 -514
This responds to your letter dated January 15, 2018 (postmarked January 22,
2018, and received January 24, 2018), by which you requested a confidential advisory
from the Pennsylvania State Ethics Commission ( "Commission ").
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
P
a.7S. § 1101 et seer ., would impose prohibitions or restrictions upon an A of a [type of
political subdivision,- B, who in a private capacity is employed with a company, with
regard to participating in votes or other actions of the [type of political subdivision] B
pertaining to matters involving an entity that is a customer of the company.
Facts: You have been authorized by Individual C to request a confidential
advisory from the Commission on his behalf. You have submitted facts, the material
portion of which may be fairly summarized as follows.
Individual C is an A of the B of the [name of political subdivision] ( "the Political
Subdivision "). In his capacity as an A of the Political Subdivision B, Individual C has
served on the D, which works directly with the Political Subdivision's E and Fs on
various matters pertaining to the G of H received by the Political Subdivision. The
Political Subdivision receives H from various sources, including an entity named [name
of entity] ( "the Entity ").
In a private capacity, Individual C is employed with a company named [name of
company] ('the Company "). The Entity is a customer of the Company. The contractual
relationship between the Company and the Entity involves an annual expenditure in
excess of $500.00. You state that Individual C has no authority at the Company to act
upon any contractual matters between the Company and the Entity.
Based upon the above submitted facts, the question that is presented is whether
the Ethics Act would impose prohibitions or restrictions upon Individual C with regard to
partici .pating in votes or other actions of the Political Subdivision B pertaining to matters
involving the Entity.
Discussion: It is initially noted that pursuant to Sections 1107(l 0) 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
Confidential Advice, 18 -514
March ,
Page 2
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 an A of the Political Subdivision B, Individual C is 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 dischar e 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
provided 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
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
Confidential Advice, 18 -514
March
Page 3
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 legsl 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.
"De minimis economic impact." An economic
consequence which has an insignificant effect.
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, discussmq, conferring with others, and lobbying for a particular result.
Juliante, Order 809. Subject to certain statutory exceptions, in each instance of a voting
coffin ict, 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 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.
Kistler, su ra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics
Act, puic� official /public employee "must be consciously aware of a private pecuniary
Confidential Advice, 18 -514
Marcfi 19, 2018
Page 4
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.
The Company is a business with which Individual C is associated in his capacity
as an employee. Individual C would have a conflict of interest under Section 1103(a) of
the Ethics Act as to vote(s) and/or other action(s) of the Political Subdivision B
pertaining to matter(s) involving the Entity if: (1) he would be consciously aware of a
private pecuniary benefit for himself or the Company; (2) his 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. Cf. Kistler,
supra.
As noted above, in each instance of a conflict of interest, Individual C 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 1.
Conclusion: Based upon the submitted facts that: (1) Individual C is an A of the
B of e name of political subdivision] ( "the Political Subdivision "); (2) in his capacity as
an A of the Political Subdivision B, Individual C has served on the D, which works
directly with the Political Subdivision's E and Fs on various matters pertaining to the G
of H received by the Political Subdivision; 3) the Political Subdivision receives H from
various sources, including an entity named name of entity] ( "the Entity'); (4) in a private
capacity, Individual C is employed with a company named [name off company] ( "the
Company "); (5) the Entity is a customer of the Company; (6) the contractual relationship
between t Company and the Entity involves an annual expenditure in excess of
$500.00; and (7) Individual C has no authority at the Company to act upon any
contractual matters between the Company and the Entity, you are advised as follows.
As an A of the Political Subdivision B, Individual C is 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 Company is a business with which Individual C is associated in his
capacit as an employee. Individual C would have a conflict of interest under Section
1103(aNf the Ethics Act as to vote(s) and/or other action(s) of the Political Subdivision
B pertaining to matter(s) involving the Entity if: (1) he would be consciously aware of a
private pecuniary benefit for himself or the Company; (2) his 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, Individual C 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.
Confidential Advice, 18.514
March
Page 5
Pursuant to Section 1107(l 1) 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 actual!
received at the Commission within thirty (20) days of the date of this
vice pursuant to 51 Pa. Code § 93.2(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,r�
Robin Hj ittttie/
Chief Counsel