HomeMy WebLinkAbout18-561 ConfidentialPHONE: 717- 783 -1610
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To the Requester:
STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120 -0400
ADVICE OF COUNSEL
November 2, 2018
FACSIMILE: 717- 787 -0806
WEBSITE: www.ethics.oa.gov
18-561
This responds to your letter dated August 21, 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
PaS. § 1101 et seq., would impose prohibitions or restrictions upon an individual
serving as an A of B, which is the governing body of C, Pennsylvania, with regard to
voting on an annual C budget that would contain line items allocating funds to the D for
the salaries of the union and non -union D employees and D Es, Fs, Gs, and supplies,
where: (1) the individual's father is an H on the D; (2) the salaries of Hs on the D are set
by Is of the J and paid by the J; and (3) the individual's father and the other Hs on the D
would not realize any sort of financial gain or benefit as a result of the aforesaid funds
being allocated to the D.
Facts: You request a confidential advisory from the Commission based upon
sul5m atted facts, the material portion of which may be fairly summarized as follows.
You are in your first year of service as an A of B, which is the governing body of
the C.
Your father is an H on the D. The salaries of Hs on the D are set by Is of the J
and paid by the J.
B annually votes on a C budget that contains line items allocating funds to the D
for the salaries of the union and non -union D employees and D Es, Fs, Gs, and
supplies. You state that your father and the other Hs on the D do not realize anyy sort of
financial gain or benefit as a result of the aforesaid funds being allocated to the D.
Based upon the above submitted facts, ou ask whether you would have a
conflict of interest with regard to voting on the 2019 C budget.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
epics 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 trut fully discllosed all of the material facts.
Confidential Advice, 18 -561
November 2,
Page 2
As an A of B, 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_
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
provided 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), 0).
The following terms related to Section 1103(x) are defined in the Ethics Act as
follows:
§ 1102. Definitions
"Conflict" or "conflict of interest." Use by a public
official or public employyee of the authority of his office or
employment or any conMential 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
Confidential Advice, 18 -561
November 2,
Page 3
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.
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 officelemployment or confidential
information received lholdinq suc h a public position for the private pecuniary benefit
of the public officiallpic empoyee 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 officiallpublic 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, discussinQ, conferring with others, and lobbying fora particular result.
Juliante, Order 809. Subject to certain statutory exceptions, in each instance of a voting
co ^nom 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
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(a) of the Ethics
Act, a public official/public employee "must be consciously aware of a private pecuniary
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.
Your father is a member of your "immediate family" as that term is defined in the
Ethics Act. Your father's service as an H on the D, where his salary is set by Is of the J
and paid by the J, would not in and of itself form the basis of a conflict of interest for you
in budgetary or other matter(s) before B that would financially impact the D.
Absent some basis for a conflict of interest such as a private pecuniary benefit to
you, a member of your immediate family such as your father, or a business with which
you or a member of your immediate family is associated, you would not have a conflict
of interest under Section 1103(a) of the Ethics Act in your capacity as an A of B with
regard to voting on a 2019 C budget that would contain line items allocating funds to the
D for the salaries of the D union and non -union employees and D Es, Fs, Gs, and
supplies.
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
Confidential Advice, 18 -661
November 2,
Page 4
interpretation of the Ethics Act. Specifically not addressed herein is the applicability of
the K.
Conclusion: Based upon the submitted facts that: (1) you are in your first year of
service as an A of B, which is the governing body of C, Pennsylvania; (2) your father is
an H on the D; (3) the salaries of Hs on the Dare set by Is of the J and paid by the J; (4)
B annually votes on a C budget that contains line items allocating funds to the D for the
salaries of the union and non -union D employees and D Es, Fs, Gs, and supplies; and
(5) your father and the other Hs on the D do not realize any sort of financial gain or
benefit as a result of the aforesaid funds being allocated to the D, you are advised as
follows.
As an A of B, 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 se g. Your father
is a member of your "immediate family" as that term is defined in the t€t ics Act. Your
father's service as an H on the D, where his salary is set by Is of the J and paid by the
J, would not in and of itself form the basis of a conflict of interest for you in budgetary or
other matter(s) before B that would financially impact the D.
Absent some basis for a conflict of interest such as a private pecuniary benefit to
you, a member of your immediate family such as your father, or a business with which
you or a member of your immediate family is associated, you would not have a conflict
of interest under Section 1103(a) of the Ethics Act in your capacifi as an A of B with
regard to voting on a 20'19 C budget that would contain line items allocating funds to the
D for the salaries of the D union and non -union employees and D Es, Fs, Gs, and
supplies.
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 actuall
received at the Commission within thing (30) days of the date o this
A vice pursuant to 51 Pa. Code § �3.2(h). The appeal may be
received at the Commission by hand delivery United States mail,
delivery service, or by FAX transmission (717487-0806). Failure to
file such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal.
SM ely,
;Ut� , 4�K
Robin M. Hittie
Chief Counsel