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STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120 -0400
ADVICE OF COUNSEL
October 19, 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
WEBSITE: www.ethics.pa.gov
18 -555
This responds to your letter dated August 20, 2018, 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
Pa.7S. § 1101 et sec.., would impose prohibitions or restrictions upon an individual
serving as a Member and Chairman of the Board of Commissioners of Berks Count
( "County "), Pennsylvania, with regard to directly soliciting businesses, including: (1)
vendors to the County; (2) vendors to the County Commissioners Association of
Pennsylvania, of which the County is a Member and with which the County has various
contracts; and (3) businesses that may have a preexisting relationship with the
individual and may know him only in his private capacity, for donations for the
individual's campaign for election as Second Vice President of the National Association
of Counties, of which the County is also a Member.
Facts: You have been authorized by Christian Y. Leinbach ( "Mr. Leinbach ") to
request an advisory from the Commission on his behalf. You have submitted facts that
may be fairly summarized as follows.
Mr. Leinbach is a Member and Chairman of the County Board of Commissioners,
which consists of three Members. The County is a third class county under the County
Code, 16 P.S. § 101 et seq.
Pursuant to Section 440 of the County Code, 16 P.S. § 440, the County is a
Member of the County Commissioners Association of Pennsylvania ( "CCAP "), which is
a nonprofit organization. The County 1 as various contracts with CCAP and its affiliated
organizations and will likely engage in additional such contracts in the future. As
permitted by Section 446 of the County Code, 16 P.S. § 446, the County is also a
Member of the National Association of Counties ("NACo ").
Mr. Leinbach is running for the office of Second Vice President of NACo. The
election campaign for Second Vice President began on October 1, 2018, and will
culminate at the NACo Annual Convention in July 2019. Only elected county officials
Schnee, 18 -555
19, 2018
Page 2
may run for the office of NACo Second Vice President. Pursuant to NACo guidelines, a
candidate for Second Vice President may raise up to $25,000.00 to be used for non -
travel- related campaign expenditures and may raise additional funds for travel
expenses.
Mr. Leinbach would like to raise donations for his campaign for election as
Second Vice President by giving speeches to CCAP and other entities, including
vendors to the County and vendors to CCAP. Some of the businesses that Mr.
Leinbach intends to solicit for donations may have a preexisting relationship with him
and may know him only in his private capacity. Donations to Mr. Leinbach would be
made with the understanding that Mr. Leinbach, as a County Commissioner, would not
in any way be influenced by such donations. Mr. Leinbach proposes to have CCAP
collect all donations and make all disbursements from a designated CCAP account that
would have revenue and expenses posted online for public access at any time.
Based upon the above submitted facts, you ask whether Mr. Leinbach could
directly solicit businesses, including: (1) vendors to the County; (2) vendors to CCAP;
and (3) businesses that may have a preexisting relationship with him and may know him
only in his private capacity, for donations for his campaign for election as Second Vice
President of NACo without running afoul of Sections 1103(a), 1103(c), and 1103(d) of
the Ethics Act (pertaining to conflict of interest, accepting improper influence, and
honoraria, respectively).
Discussion: It is initial) noted that pursuant to Sections 1107(10) and 1107(11) of
e Ethics Act, 65 Pa.C.S. y§§ 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 on that the requester has submitted, the Commission does not en age 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 disclosed all of the material facts.
As a Member and Chairman of the County Board of Commissioners, Mr.
Leinbach 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.
(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 or other legally required vote of
Schnee, 18 -555
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Page 3
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
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
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
It 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.
Schnee, 18 -555
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Page 4
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
con 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.
It is noted that the above statutory definition of the term "conflict" or "conflict of
interest" contains, in pertinent part, an exclusion referred to herein as the "de minimis
exclusion."
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.
The Commission has determined the appbility of the de minimis exclusion on a
case -by -case basis, considering all relevant circumstances. In the past, the
Commission has found amounts ranging from $2 to approximately $1,300 to be de
minimis. See. Bixler v. State Ethics Commission, 847 A.2d 785 (Pa. Cmwlth. 2004).
Per Commission precedent, the Ethics, Act does not prohibit a ublic
officiallpublic employee from accepting "no- strings- attached" gifts, transportation,
lodging or hospitality (also generically referred to herein as "items' from a donor. Cf.,
Cooper, Opinion 9-009. However, such item(s) received by a public official /puB c
employee may form the basis for a conflict of interest pursuant to Section 1103(a) of the
Ethics Act if the public official/public employee takes action in furtherance of the
interests of the donor. While the receipt of an item of de minimis value would not, in
and of itself, create a conflict of interest as to action involving the donor (see, etc .,
Cohen, Opinion 03 -006; Stieh, Advice 93-503), the decision as to whether a conflict of
Interest is presented by t -fie receipt of item(s) is determined on a case -by -case basis.
Generally, when a public official or public employee has received item(s) that would
form the basis for a conflict of interest under the Ethics Act, the public official/public
employee must abstain from acting in matters pertaining to the donor.
Re a rdless of whether a conflict of interest exists, depending upon the value of
the item(s received, the public official or public employee may be required to disclose
his receip of such item(s)on his Statement of Financial Interests pursuant to Sections
1104 and 1105 of the Ethics Act, 65 Pa.C.S. §§ 1104, 1105. Subject to certain statutory
exceptions not applicable to this matter, Section 1105(b)(6) of the Ethics Act requires
the filer to disclose on the Statement of Financial Interests the name and address of the
source and the amount of any gift or gifts valued in the aggregate at $250 or more and
the circumstances of each gift
Sections 1103(b) and 1103(c) of the Ethics Act, 65 Pa.C.S. §§ 1103(b), (c),
provide in part that no person shall offer or give to a public official/public employee
anything of monetary value and no public official/public employee shall solicit or accept
anything of monetary value based upon the understanding that the vote, official action,
or judgment of the public official/public employee would be influenced thereby. See,
,eg., Kasaback, Order 993; Helsel, Order 801; Volpe, Order 579 -R; Smith, Order 578 -R.
Section 11 03(4) of the Ethics Act prohibits a public official/public employee from
accepting an honorarium:
§ 1103. Restricted activities.
Schnee, 18 -555
c�er 19, 2018
Page 5
(d) Honorarium. - -No public official or public
employee shall accept an honorarium.
65 Pa.C.S. § 1103(d).
The Ethics Act defines the term "honorarium" as follows:
§ 1102. Definitions
"Honorarium." Payment made in recognition of
published works, appearances, speeches and presentations
and which is not intended as consideration for the value of
such services which are nonpublic occupational or
professional in nature. The term does not include tokens
presented or provided which are of de minimis economic
impact.
65 Pa.C.S. 1102. A monetary payment would not fall within the exception to the
definition of `honorarium" for "tokens' of a de minimis economic impact. Crompton,
Opinion 09 -002.
Finally, the Ethics Act defines the term "gift" as that term is defined in Section
13A03 of Pennsylvania's lobby'n disclosure law ( "Lobbying Disclosure Law "), 65
Pa.C.S. § 13A03 see, 65 Pa.C.S. � 1102):
§ 13A03. Definitions.
"Gift." Anything which is received without
consideration of equal or greater value. The term shall not
include a political contribution otherwise reportable as
required by law or a commercially reasonable loan made in
the ordinary course of business. The term shall not include
hospitality, transportation or lodging.
65 Pa.C.S. § 13A03.
In ap lying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
Unlike a candidate seeking election to a public office, Mr. Leinbach's campaign
for the position of Second Vice President of NACo is inextricably linked to his current
public office. This is because, but for being an elected County official (Commissioner),
r. Leinbach could not seek election to the position of Second Vice President of NACo.
Because Mr. Leinbach's campaign for the position of Second Vice President of
NACo is inextricably linked to his current public office, donation(s) to Mr. Leinbach for
that campaign, hereinafter referred to as "NACo Campaign Donations," would constitute
prohibited Honoraria if such donation(s) would constitute payment(s) made in
recognition of Mr. Leinbach's published works, appearances, speeches or
presentations.
The Ethics Act would not prohibit Mr. Leinbach from directly soliciting or
accepting NACo Campaign Donations that would not constitute prohibited honoraria
from: (1) vendors to the County; (2) vendors to CCAP; (3) businesses that may have a
preexisting relationship with him and may know him only in his private capacity; or (4)
other businesses, subject to the condition that there would be no improper influence
prohibited by Sections 1103(b)- 1103(c) of the Ethics Act. Per Commission precedent,
Schnee, 18555
c�TeW 19, 2018
Page 6
where a vendor/business would make NACo Campaign Donations) to Mr. Leinbach: (1)
unless the value of such NACo Campaign Donation(s) would be de minimis, Mr.
Leinbach could have a conflict of interest under Section 1103(a) of the Ethics Act in
matter s before before the County Board of Commissioners involving such vendor/business;
and (2) depending upon the value of such NACo Campaign Donation(s), Mr. Leinbach
may be required to disclose such NACo Campaign Donation(s) on his Statements of
Financial Interests filed pursuant to the Ethics Act.
If Mr. Leinbach would become Second Vice President of NACo, NACo would
be a business with which Mr. Leinbach is associated in his capacity as an officer, and
subject to the statutory exclusions to the definition of "conflict" or "conflict of interest" as
set forth in Section 1 102 of the Ethics Act, 65 Pa.C.S. § 1102, pursuant to Section
1103(-) of the Ethics Act, Mr. Leinbach would have a conflict of interest in his capacity
as a Member and Chairman of the County Board of Commissioners in matter(s) that
would financially impact NACo.
In each instance of a conflict of interest, Mr. Leinbach would be required to
abstain from participation, which would include voting unless one of the statutory
exceptions of Section 1103 0) 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) Christian Y. Leinbach ( "Mr.
Leinbach") s a Member and Chairman of the Board of Commissioners of Berks County
("County "), Pennsylvania; (2) the County Board of Commissioners consists of three
Members; (3) the County is a third class county under the County Code, 16 P.S. § 101
et se .; (4) pursuant to Section 440 of the County Code, 16 P.S. § 440, the County is a
Member of the County Commissioners Association of Pennsylvania ( "CCAP "), which is
a nonprofit organization; (5) the County has various contracts with CCAP and its
affiliated organizations and will likely engage in additional such contracts in the future;
(6) as permitted by Section 446 of the County Code, 16 P.S. § 446, the County is also a
Member of the National Association of Counties ( "NACo "); O Mr. Leinbach is running
for the office of Second Vice President of NACo; (8) the election campaign for Second
Vice President began on October 1, 2018, and will culminate at the NACo Annual
Convention in July 2019; (9 only elected county officials may run for the office of NACo
Second Vice President; (10) pursuant to NACo guidelines, a candidate for Second Vice
President may raise up to $25,000.00 to be used for non - travel - related campaign
expenditures and may raise additional funds for travel expenses; (11) Mr. Leinbach
would like to raise donations for his campaign for election as Second Vice President by
giving speeches to CCAP and other entities, including vendors to the County and
vendors to CCAP; (12) some of the businesses that Mr. Leinbach intends to solicit for
donations may have a preexisting relationship with him and may know him only in his
private capacity; (13) donations to Mr. Leinbach would be made with the understanding
hat Mr. Leinbach, as a County Commissioner, would not in any way be influenced by
such donations; and (14) Mr. Leinbach proposes to have CCAP collect all donations
and make all disbursements from a designated CCAP account that would have revenue
and expenses posted online for public access at any time, you are advised as follows.
As a Member and Chairman of the County Board of Commissioners, Mr.
Leinbach is a public official subject to the provisions of the Public Official and Employee
Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 110, et s_e . Unlike a candidate seeking election
to a public office, Mr. Leinbach's campaign for the position of Second Vice President of
Schnee, 18 -555
6ZGF- r 19, 2018
Page 7
NACo is inextricably linked to his current public office. This is because, but for being an
elected County official (Commissioner), Mr. Leinbach could not seek election to the
position of Second Vice President of NACo. Because Mr. Leinbach's campaign for the
position of Second Vice President of NACo is inextricably linked to his current ppublic
office, donation(s) to Mr. Leinbach for that campaign, hereinafter referred to as "NACo
Campaign Donations," would constitute prohibited honoraria if such donation(s) would
constitute payment(s) made in recognition of Mr. Leinbach's published works,
appearances, speeches or presentations.
The Ethics Act would not prohibit Mr. Leinbach from directly soliciting or
accepting NACo Campaign Donations that would not constitute prohibited honoraria
from: (1) vendors to the County; (2) vendors to CCAP; (3) businesses that may have a
preexisting relationship with him and may know him only in his private capacity; or (4)
other businesses, subject to the condition that there would be no improper influence
prohibited by Sections 1103(b)-1103(c) of the Ethics Act. Per Commission precedent,
where a vendor /business would make NACo Campaign Donations) to Mr. Leinbach: (1)
unless the value of such NACo Campaign Donation(s) would be de minimis, Mr.
Leinbach could have a conflict of interest under Section 1103(a) of the Ethics Act in
matter(s) before the County Board of Commissioners involving such vendorlbusiness;
and (2) depending upon the value of such NACo Campaign Donation(s), Mr. Leinbach
may be required to disclose such NACo Campaign Donation(s) on his Statements of
Financial Interests filed pursuant to the Ethics Act,
If Mr. Leinbach would become Second Vice President of NACo, NACo would
be a business with which Mr. Leinbach is associated in his capacity as an officer, and
subject to the statutory exclusions to the definition of "conflict" or "conflict of interest" as
set forth in Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102, pursuant to Section
1103(a) of the Ethics Act, Mr. Leinbach would have a conflict of interest in his capacity
as a Member and Chairman of the County Board of Commissioners in matter(s) that
would financially impact NACo.
In each instance of a conflict of interest, Mr. Leinbach would be required to
abstain from participation, which would include voting unless one of the statutory
exceptions of Section 1103 °) 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 writing and must be actually
received at the Commission within thirty (30) days of the date of this
Advice pursuant to 59 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
Schnee, 18 -555
c�Fe-r 19, 2018
Page 8
file such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal.
Sincerely,
.' T
Robin M. Hittie
Chief Counsel