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HomeMy WebLinkAbout18-561 ConfidentialPHONE: 717- 783 -1610 TOLL FREE: 1- 800 -932 -0936 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