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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