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HomeMy WebLinkAbout18-551 SchneePHONE: 717 -783 -1610 TOLL FREE: 1- 800 -532 -0936 ADVICE OF COUNSEL August 27, 2018 To the Requester: Mr. J. Chadwick Schnee, Esquire First Assistant County Solicitor Berks County Solicitor's Office Dear Mr. Schnee: FACSIMILE: 717- 787 -0806 WI BSITE: www.ethics.pa.gov 18 -551 This responds to your letter dated July 27, 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 EST ics Act ( "Ethics Act "), 65 Pa.C.S. § 1103(a), the officials or employees of a county would have a conflict of interest with regard to engaging in official action(s) related to a proposed partnership between the county and the United Way that would be entered into for the purpose of supporting the charitable mission of the United Way, where: (1) the county would establish a council of volunteers, consisting of county officials and county employees, to plan and organize a fundraising campaign to solicit financial donations for the United Way from county officials and county employees; (2) the United Way would be permitted to send solicitations for donations to all county officials and county employees by email and would hold various meetings with County departments during the workday to encourage county officials and county employees to contribute to the United Way; {3) county employees would distribute hard -copy solicitations for donations to the United Way to county employees without email access; (4) county officials and county emplo ees would be permitted to participate in fundraisin campaign - related functions 4hat would likely occur during normal working hours; (5) individuals who would contribute in excess of a specified amount to the United Wa would be invited by the United Way to attend an event at a private social /dining club; (6 the county would institute an incentive program by which the county would provide gi cards or other possible benefits to county employees who would contribute certain amounts to the United Way; (7) as to each of the three county commissioners, it is believed that neither the county commissioner nor any member of the county commissioner's immediate family is a director, officer, owner, employee, or holder of a financial interest in the United Way; and (8) some county employees or their immediate family members may serve as directors, officers, or employees of the United Way or receive services or other benefits from the United Way. Facts: You state that you have been authorized by the Board of Commissioners 7ffo__a_rd") of Berks County ('County "), Pennsylvania, to request an advisory from the Schnee, 18 -551 u27, 2018 Page 2 Commission on behalf of the officials and employees of the County. You have submitted facts that may be fairly summarized as follows. The Board consists of three Members. The Board would like to partner with the United Way, a non- profit organization, in order to support the United Way's charitable mission. As to each County Commissioner, it is believed that neither the County Commissioner nor any member of the County Commissioner's immediate family is a director, officer, owner, employee, or holder of a financial interest in the United Way. Some County employees or their immediate family members may serve as directors, officers, or employees of the United Way or receive services or other benefits from the United Way. As part of the County's effort to support the United Way, the County would establish a council of volunteers (the "Volunteer Council ") for the purpose of planning and organizing a fundraising campaign to solicit financial donations for the United Way from County officials and County employees. The Volunteer Council would consist of County officials and County employees. At least one member of the Volunteer Council would attend a fundraising campaign planning workshop at an off -site location during normal working hours. No compensation from the United Way or any other source would be received by the members of the Volunteer Council, their immediate family members, or associated businesses. The County would engage in the United Way's e- pledging system, by which the United Way would be permitted to send solicitations for donations to all County officials and County employees by email. County employees would distribute hard -copy solicitations for donations to the United Way to County employees who do not have email access. The United Way would hold various meetings with County departments during the workday for the purpose of encouraging County officials and County employees to contribute to the United Way. The County would allow County employees to participate in a Kick -Off Event and a Day of Caring Project, both of which would likely occur during normal working hours. Individuals who would contribute in excess of a specified amount to the United Way would be considered "Leadership Givers" and would be invited by the United Way to attend an "Ambassador Event" at a private social /dining club. The County would institute an incentive program by which the County would provide gift cards or other possible benefits to County employees who would contribute certain amounts to the United Way. County officials and County employees would be permitted to make donations to the United Way during or outside of normal working hours. The County may permit County employees to contribute to the United Way through payroll deductions. Based upon the above submitted facts, the question that is presented is whether any County officials or County employees would have a conflict of interest with regard to engaging in official action(s) related to the proposed fundraising campaign to solicit donations for the United Way from County officials and County employees. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethiics 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 thaf 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. Schnee, 18 -551 u�27, 2018 Page 3 It is preliminarily noted that this advisory is limited to addressing the pros ective conduct of: (1) the County Commissioners; and (2) such other County officials) and such County employee(s) for whom you have legal standing to submit the instant advisory request. The County Commissioners are public officials subject to the provisions of the Ethics Act. Given that the submitted facts do not identify the office of any other County official(s) or the employment position of any County employee(s) for whom you have legal standing to request this advisory, this Advice assumes, without deciding, that each such County official ( "County Official ") is a public official subject to the Ethics Act and each such County employee ( "County Employee ") is a public employee subject to the provisions of the Ethics Act. For ease of reference, this advisory shall hereinafter refer to such a County Commissioner, a County Official, or a County Employee as a "County Public Official /Public Employee." 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), 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 Schnee, 18 -551 ugus 27, 2018 Page 4 his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate amily 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. "Immediate family." A parent, spouse, child, brother or sister. "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 officiallpublic 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 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 the EthicsAcf�_a_ public officiallpublic 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 Schnee, 18.551 ugust 27, 2018 Page 5 pecuniary benefit as well as the motivation. to obtain that benefit for himself. Kistler, supra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics Act, a public official /public employyee "must be consciously aware of a private pecuniary benefit for himself, his family, or Y�is 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 appl ing the above provisions of the Ethics Act to the submitted facts, you are advised as follows. The Ethics Act's definition of the term "business" includes non- profit entities. See, Rendell v. State Ethics Commission, 603 Pa. 292, 983 A.2d 708 (2009). The United Way would be considered a business with which a County Public Official/Public Employee or a member of the County Public Official /Public Employee's immediate family is associated to the extent that the County Public Official /Public Employee or a member of the County Public Official /Public Employee's immediate family is a director, officer, or employee of the United Way. Section 1103(a) of the Ethics Act would apply to restrict a County Public Official /Public Employee as to action(s) taken in his capacity, as a County Public Official /Public Employee - -also referred to herein as "official action(s) "- -and would not apply to restrict him as to action(s) taken in his private capacity. Based upon the submitted facts, a County Public Official /Public Employee would not have a conflict of interest under Section 1103(a) of the Ethics Act as to engaging in official action(s) related to the proposed fundraising campaign to solicit donations for the United Way from County officials and County employees unless: (1) the County Public OfficiallPublic Employee would be consciously aware of a rivate pecuniary benefit for the County Public Official /Public Employee, member(s) of the County Public Official /Public Employee's immediate family, or business(es) with which the County Public Official /Public Employee or member(s) of the County Public Official /Public Employee's immediate family are associated; (2) the County Public Official /Public Emplo ee's action(s) would constitute one or more specific steps to attain that benefit; and (3neither the de minimis exclusion nor the class /subclass exclusion set forth within the t ics 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, the County Public Official /Public Employee 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 County Code. Conclusion: Based upon the submitted facts that: (1) the Board of Commissioners ( "Board ") of Berks County ( "County "), Pennsylvania, consists of three Members; (2) the Board would like to partner with the United Way, a non - profit organization, in order to support the United Way's charitable mission; (3) as to each County Commissioner, it is believed that neither the County Commissioner nor any member of the County Commissioner's immediate family is a director, officer, owner, employee, or holder of a financial interest in the United Way; (4) some County employees or their immediate family members may serve as directors, officers, or Schnee, 18 -551 u27, 2018 Page 6 employees of the United Way or receive services or other benefits from the United Way; (5) as part of the County's effort to support the United Way, the County would establish a council of volunteers (the "Volunteer Council ") for the purpose of planning and organizing a fundraising campaign to solicit financial donations for the United Way from County officials and County employees; (6) the Volunteer Council would consist of County officials and County employees; () at least one member of the Volunteer Council would attend a fundraising campaign planning workshop at an off -site location during normal working hours; (8) no compensation from the United Way or any other source would be received by the members of the Volunteer Council, their immediate family members, or associated businesses; (9) the County would engage in the United Way's e- pledging system, by which the United Way would be permitted to send solicitations for donations to all County officials and County employees by email; (10) County employees would distribute hard -copy solicitations for donations to the United Way to County employees who do not have email access; (11) the United Way would hold various meetings with County departments during the workday for the purpose of encouraging County officials and County employees to contribute to the United Way; {12} the County would allow County employees to participate in a Kick -Off Event and a 'a of Caring Protect, both of which would likely occur during normal working hours; (13� of who would contribute in excess of a specified amount to the United Way would be considered "Leadership Givers" and would be invited by the United Way to attend an "Ambassador Event" at a private social /dining club; (14) the County would institute an incentive program by which the County would provide gift cards or other possible benefits to County employees who would contribute certain amounts to the United Way; (15) County officials and County employees would be permitted to make donations o the United Way during or outside of normal working hours; and (16) the County may permit County employees to contribute to the United Way through payroll deductions, you are advised as follows. This advisory is limited to addressing the prospective conduct of: (1) the County Commissioners; and (2) such other County official(s) and such County employee(s) for whom you have legal standing to submit the instant advisory request. The County Commissioners are ublic officials subject to the provisions of the Public Official and Employee Ethics Act ("Ethics Act" ) , 65 Pa.C.S. § 1101 et se Given that the submitted facts do not identify the office of other County ofFcial s) or the employment position of any County employee(s) for whom you have legal standing to request this advisory, this Advice assumes, without deciding, that each such County official ( "County Official ") is a public official subject to the Ethics Act and each such County employee ( "County Employee ") is a public employee subject to the provisions of the Ethics Act. For ease of reference, this advisory shall hereinafter refer to such a County Commissioner, a County Official, or a County Employee as a "County Public Official /Public Employee.' The United Way would be considered a business with which a County Public Official /Public Employee or a member of the County Public Official /Public Employee's immediate family is associated to the extent that the County Public Official /Public Employee or a member of the County Public Official /Public Employee's immediate family is a director, officer, or employee of the United Way. Section 1103(a) of the Ethics Act would apply to restrict a County Public Official /Public Employee as to action(s) taken in his capacity as a County Public Official /Public Employee- -also referred to herein as "official actions) " - -and would not apply to restrict him as to action(s) taken in his private capacity. A County Public Official /Public Employee would not have a conflict of interest under Section 1103(a) of the Ethics Act as to engaging in official action(s) related to the proposed fundraising campaign to solicit donations for the United Way from County officials and County employees unless: (1) the County Public Official /Public Employee would be consciously aware of a private pecuniary benefit for the County Public Official/Public Employee, member(s) of the County Public Official /Public Employee's immediate family, or business(es) with which the County Schnee, 18 -551 u27, 2018 Page 7 Public Official /Public Employee or member(s) of the County Public OfficiallPublic Employee's immediate family are associated; (2) the County Public Official /Public Employee's 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 t ics 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, the County Public Official /Public Employee 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. Any such appeal must be in writingg and must be actual) received at the Commission within thirty (31 days of the date oo tthrs Advice pursuant 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. Since ly, obin M. 1H tie Chief Counsel