HomeMy WebLinkAbout18-558 ConfidentialPHONE: 717- 783 -1610
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To the Requester:
X
STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120 -0400
ADVICE OF COUNSEL
October 29, 2018
FACSIMILE: 717- 787 -0806
WEBSITE: www.ethics.r)agov
This responds to your letters dated August 3, 2018, and August 22, 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
FaT-17-8. § 1101 et seq., would impose prohibitions or restrictions upon an individual
serving as an A for [name of political subdivision] the "Political Subdivision ") with regard
to participating in votes or other actions of the Political Subdivision [governing body]
pertaining to matters involving two volunteer fire companies located in the Political
Subdivision, where: (1) both of the volunteer fire companies are recognized and
designated as fire companies for the Political Subdivision and annually receive funds
from the Political Subdivision; and (2) the individual is a B but not a C of one of the
volunteer fire companies.
Facts: You have been authorized by Individual D to request a confidential
aws�ory from the Commission on his behalf. You have submitted facts that may be
fairly summarized as follows.
Individual D is an A for the Political Subdivision, which is located in [name of
county], Pennsylvania.
[Name of volunteer fire company] ( "Volunteer Fire Company 1 ") and another
volunteer fire company ( "Volunteer Fire Company 2" ) are located in the Political
Subdivision. Volunteer Fire Company 1 and Volunteer Fire Company 2 are recognized
and designated as fire companies for the Political Subdivision. Volunteer Fire Company
1 and Volunteer Fire Company 2 annually receive funds from the Political Subdivision
pursuant to the E.
Individual D is a B but not a C of Volunteer Fire Company 1.
Based upon the above submitted facts, the question that is presented is whether
Individual D would have a conflict of interest with regard to participating in votes or other
actions of the Political Subdivision [governing body] pertaining to matters involving
Volunteer Fire Company 1 and/or Volunteer Fire Company 2.
Confidential Advice, 18 -558
cto er
Page 2
Discussion: It is initially noted that pursuant to Sections 1107(10) 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
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 Political Subdivision A, Individual D is a public official subject to the
provisions of the Ethics Act.
Sections 1103(x) 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
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 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), (j).
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 enefit of himself, a member of his immediate
Confidential Advice, 18 -558
October 29,
Page 3
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
"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
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.
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 1 TUT(-aT-oT-tfi 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, supra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(x) of the Ethics
Act, a public official/public employee "must be consciously aware of a private pecuniary
Confidential Advice, 18 -558
cto E er
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.
Even if Volunteer Fire Company 1 would be considered a "business" as that term
is defined in the Ethics Act (which cannot be determined based upon the limited
submitted facts), Volunteer Fire Company 1 would not be considered a business with
which Individual D is associated because he is not a director, officer, owner, employee,
or holder of a financial interest in Volunteer Fire Company 1. Since Volunteer Fire
Company 1 is not a business with which Individual D is associated, he would not have a
conflict of interest under Section 1103 (a) of the Ethics Act in matter(s) before the
Political Subdivision [governing body] that would financially impact Volunteer Fire
Company 1 but that would not financially impact him, a member of his immediate family,
or a business with which he or a member of his immediate family is associated.
Absent some basis for a conflict of interest such as a private pecuniary benefit to
Individual D, a member of his immediate family, or a business with which he or a
member of his immediate family is associated, Individual D would not have a conflict of
interest under Section 1103(a) of the Ethics Act with regard to participating in votes) or
other action(s) of the Political Subdivision [governing bodyl pertaining to mattter(s)
involving Volunteer Fire Company 1 and/or Volunteer Fire Company 2.
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
interppretation of the Ethics Act. Specifically not addressed herein is the applicability of
the E.
Conclusion: Based upon the submitted facts that: (1) Individual D is an A for
name o political subdivision] (the "Political Subdivision "), located in name of county],
ennsylvania; (2) linea me of volunteer fire company] ( "Volunteer Fire Company 1 ") and
another volunteer co mpany ( "Volunteer Fire Company 2 ") are located in the Political
Subdivision; (3) Volunteer Fire Company 1 and Volunteer Fire Company 2 are
recognized and designated as fire companies for the Political Subdivision; (4) Volunteer
Fire Company 1 and Volunteer Fire Company 2 annually receive funds from the Political
Subdivision pursuant to the E; and (5) Individual D is a B but not a C of Volunteer Fire
Company 1, you are advised as follows.
As a Political Subdivision A, Individual D is a public official subject to the
provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §
1101 et seg. Even if Volunteer Fire Company 1 would be considered a "business" as
that term is defined in the Ethics Act (which cannot be determined based upon the
limited submitted facts), Volunteer Fire Company 1 would not be considered a business
with which Individual D is associated because he is not a director, officer, owner,
employee, or holder of a financial interest in Volunteer Fire Company 1. Since
Volunteer Fire Company 1 is not a business with which Individual D is associated, he
would not have a conflict of interest under Section 1103(a) of the Ethics Act in matter(s)
before the Political Subdivision [governing body] that would financially impact Volunteer
Fire Company 1 but that would not financially impact him, a member of his immediate
family, or a business with which he or a member of his immediate family is associated.
Absent some basis for a conflict of interest such as a private pecuniary benefit to
Individual D, a member of his immediate family, or a business with which he or a
member of his immediate family is associated, Individual D would not have a conflict of
interest under Section 1103(a) of the Ethics Act with regard to participating in vote(s) or
other action(s) of the Political Subdivision [governing body] pertaining to matter(s)
involving Volunteer Fire Company 1 and /or Volunteer Fire Company 2.
Confidential Advice, 18 -558
cto er
Page 5
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 actuall
received at the Commission within thirty (30) days of the dateoio this
Advice pursuant to 51 Pa. Code § 73.2(h). The .appeal may be
received at the Commission by hand delivery, United States mail,
delivery service, or by FAX transmission (777 - 787 - 0806). Failure to
file such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal.
Sincerely,
PoU'in�M. ittie
Chief Counsel