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ADVICE OF COUNSEL
November 13, 2018
To the Requester:
Mr. Philip M. McKinley, Sr.
Dear Mr. McKinley:
FACSIMILE: 717 -787 -0806
WEBSITE: www.ethics.12a.goy
18 -562
This responds to your letter dated September 3, 2018, and your email received
October 2, 2018, b which you requested an advisory from the Pennsylvania State
Ethics Commission "Commission ").
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act") 65
P�a�S. § 1101 et seq., would impose prohibitions or restrictions upon a Member of the
City Council of tFFe City of Arnold, who In a private capacity has a company that owns a
property located in the City of Arnold, with regard to the company purchasing an empty,
unbuildable lot which is adjacent to the company's property and is owned by the City of
Arnold Redevelopment Authority.
Facts: You request an advisory from the Commission based upon submitted
Pts hat may be fairly summarized as follows.
You are a Member of the City Council of the City of Arnold ( "City "). In a private
capacity, you have a company (the "Company ") that owns a property ( "Property 1")
located in the City. A building on Property 1 houses your pizza shop.
The City. of Arnold Redevelopment Authority ( "Redevelopment Authority ") owns
an empty lot ( Propperty. 2 ") that is adjacent to Property 1. Property 2 is approximately
120 feet long and 20 feet wide and is unbuildable due to setback requirements.
The Redevelopment Authority has been selling many empty lots for $600.00 per
lot in order to put the lots back on the tax rolls and stop incurring costs for maintaining
the lots. The Redevelopment Authority has agreed to sell Property 2 to the Company
for $600.00. You state that you have not had discussions with City Council or
participated in any votes of City Council pertaining to the Company's potential purchase
of Property 2.
Based upon the above submitted facts, the question that is presented is whether
the Ethics Act would impose prohibitions or restrictions upon you with regard to the
Company purchasing Property 2 from the Redevelopment Authority.
Mc�Kinle , 18 -562
oN vember 13, 2018
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 Member of City Council, 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
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(x) 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
McKinle , 18 -562
oN vember 13, 2018
Page 3
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 b holding such a public position for the private pecuniary benefit
of the public official/public 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 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, discussing, conferring with others, and lobbying for a particular result.
Juliante, Order 809. Subject to certain statutory exceptions, in each instance of a voting
conflict, 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).
McKinle , 18 -562
oN vember 13, 2018
Page 4
In ap lying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
The Company is a business with which you are associated.
The submitted facts are insufficient to establish the fair market value of Property
2 or any financial impact acquiring Property 2 would have upon you/the Company, given
that Property 2 is adjacent to Property 1.
Therefore, you are advised that you would have a conflict of interest under
Section 1103(a) of the Ethics Act in matter(s) before City Council pertaining to the
Company's purchase of Property 2 from the Redevelopment Authority if such
transaction would result in a pecuniary benefit to you/the Company that would be
greater than de minimis.
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 Third Class City Code.
Conclusion: As a Member of the City Council of the City of Arnold ( "City " Lhics you
are a pu is official subject to the provisions of the Public Official and Employee
Act ( "Ethics Act " ), 65 Pa.C.S. § 1101 et sew. Based upon the submitted facts that: (1) in
a private capacity, you have a company (the "Company ") that owns a property
�'Property 1") located in the City; (2) a building on Property 1 houses your pizza shop;
3') the City f Arnold Redevelopment Authority ( "Redevelopment Authority ") owns an
em pt lot ("Propert 2 ") that is adjacent to Property 1; (4) Property 2 is approximately
120 feet long and 20 feet wide and is unbuildable due to setback requirements; (5) the
Redevelopment Authority has been selling many empty lots for $600.00 per lot in order
to put the lots back on the tax rolls and stop incurring costs for maintaining the lots; (6)
the Redevelopment Authority has agreed to sell Property 2 to the Company for $600.00;
and (7� you have not had discussions with City Council or participated in any votes
pertaining to the Company's potential purchase of Property 2, you are advised as
fol lows.
The Company is a business with which you are associated. The submitted facts
are insufficient to establish the fair market value of Property 2 or any financial impact
acquiring Property 2 would have upon you/the Company, given that Property 2 is
adjacent to Property 1. Therefore, you are advised that you would have a conflict of
interest under Section 1103(a) of the Ethics Act in matter(s) before City Council
pertaining to the Company's purchase of Property 2 from the Redevelopment Authority
if such transaction would result in a pecuniary benefit to you/the Company that would be
greater than de minimis.
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.
McKinle , 18 -562
oN vem er 13, 2018
Page 5
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 thirty (30) days of the date of this
Advice "pursuant to 51 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.
Sincerely,
Robin M. Hittie
Chief Counsel