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HomeMy WebLinkAbout18-540 VanSteenbergPHONE: 717 -783 -1610 TOLL FREE: 1 -800- 932 -0936 ors STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120 -0400 ADVICE OF COUNSEL June 28, 2018 To the Requester: Mr. James VanSteenberg, Treasurer Jefferson County Treasurer's Office Dear Mr. VanSteenberg: FACSIMILE: 717- 787 -0806 WEBSITE: www.ethics.pa.gov 18 -540 This responds to your letter dated June 5, 2018, 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 Ethicrs Act ( "Ethics Act "), 65 Pa.C.S. § 1103(a), an individual serving as a county treasurer would have a conflict of interest with regard to collecting the county hotel room rental tax and providing the tax revenue to a tourism /visitors bureau for it to use in promoting tourism, if the individual would become the treasurer of a 501(c)(4) corporation that will receive funding from the visitors bureau to advertise a festival run by the corporation. Facts: As the Treasurer of Jefferson County ("County'?, Pennsylvania, you request an advisory from the Commission based upon submitteacts that may be fairly summarized as follows. In your role as the County Treasurer, you collect a tax that the County imposes on hotel room rentals within the County (the "County Hotel Tax "). You provide all of the County Hotel Tax revenue, less a County administrative fee to the Pennsylvania Great Outdoors Visitors Bureau (the "Visitors Bureau ") for it to use in promoting tourism in the Pennsylvania Great Outdoors region. You have no influence over the Visitors Bureau's decisions regarding the expenditure of County Hotel Tax revenue, and you meet with the committee involved with the County Hotel Tax only when you need to explain why you want to change collection procedures. You are a Member of the Board of Directors of a 501(c)(4) corporation known as "Brookville Laurel Festival" (the "Corporation " }. You state that the Corporation is separate from the County in all aspects. The Corporation will receive funding from the Visitors Bureau to advertise a festival (the "Festival ") run by the Corporation. You have been asked to serve as the Treasurer of the Corporation, in which capacity you would handle funds pertaining to the Festival, including funds provided to the Corporation by the Visitors Bureau. You state that as a precaution, you have not been involved with asking the Visitors Bureau for funds. VanSteenber , 18 -540 June 28, 201T Page 2 Based upon the above submitted facts, the question that is presented is whether, if you would become the Treasurer of the Corporation, the Ethics Act would impose prohibitions or restrictions upon you with regard to collecting the County Hotel Tax and providing the County Hotel Tax revenue to the Visitors Bureau. 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. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion /advice ma yy be given only as to prospective (future) conduct. To the extent that your in uiry relates to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent your inquiry relates to future conduct, your inquiry may and shall be addressed. As the County Treasurer, 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. .j) 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 r 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 bod of a political subdivision, where one member has abs ained from voting as a result of a conflict of interest and the remaining wo 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). VanSteenber , 18 -540 June , Page 3 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 he 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 %holding such a public position for the private pecuniary benefit of the public official /pic 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, conferring with others, and lobbying for a particular result. Juliante, Order 809. Subject to certain statutory exceptions, in each instance of a voting cow 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. Having established the above general principles, you are advised as follows. VanSteenber , 18 -540 June 28, 2019 Page 4 The Corporation is a business with which you are associated in your capacity as a Director. If you would become the Treasurer of the Corporation, the Corporation would also be a business with which you are associated in your capacity as an officer. At such time(s) as you would be a Director and/or the Treasurer of the Corporation, you generally would have a conflict of interest under Section 1103(a) of the Ethics Act as the County Treasurer in matters that would financially impact you or the Corporation. However, based upon the submitted fact that as the County Treasurer you would have no influence over decision(s) by the Visitors Bureau whether to distribute County Hotel Tax revenue to the Corporation, you are advised that you would not have a conflict of interest with regard to collecting the County Hotel Tax and providing the County Hotel Tax revenue to the Visitors Bureau. 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 County Code, Conclusion: As the Treasurer of Jefferson County ( "County "), Pennsylvania, 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 spec . Based upon the submitted facts that: {1 } in your role as the County Treasurer, you collect a tax that the County imposes on hotel room rentals within the County (the "County Hotel Tax "); (2) you provide all of the County Hotel Tax revenue, less a County administrative fee, to the Pennsylvania Great Outdoors Visitors Bureau (the "Visitors Bureau ") for it to use in promoting tourism in the Pennsylvania Great Outdoors region; (3) you have no influence over the Visitors Bureau's decisions regarding the expenditure of County Hotel Tax revenue, and you meet with the committee involved with the County Hotel Tax only when you need to explain why you want to change collection procedures; (4) you are a Member of the Board of Directors of a 501 (c)(4) corporation known as "Brookville Laurel Festival" (the "Corporation "); (5) the Corporation is separate from the County in all aspects; (6) the Corporation will receive funding from the Visitors Bureau to advertise a festival (the "Festival ") run by the Corporation; (7) you have been asked to serve as the Treasurer of the Corporation, in which capacity you would handle funds pertaining to the Festival, including funds provided to the Corporation by the Visitors Bureau; and (8) as a precaution, you have not been involved with asking the Visitors Bureau for funds, you are advised as follows. The Corporation is a business with which you are associated in your capacity as a Director. If you would become the Treasurer of the Corporation, the Corporation would also be a business with which you are associated in your capacity as an officer. At such time(s) as you would be a Director and/or the Treasurer of the Corporation, you generally would have a conflict of interest under Section 1.103(a) of the Ethics Act as the County Treasurer in matters that would financially impact you or the Corporation. However, based upon the submitted fact that as the County Treasurer you would have no influence over decision(s) by the Visitors Bureau whether to distribute County Hotel Tax revenue to the Corporation, you are advised that you would not have a conflict of interest with regard to collecting the County Hotel Tax and providing the County Hotel Tax revenue to the Visitors Bureau. 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 VanSteenber , 18 -540 June 25, Page 5 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 received at the Commission within thirty (30) days of the date of this vice rursuant 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 We such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Robin M. Hittie Chief Counsel