HomeMy WebLinkAbout18-563 JohnsonPHONE: 717 -783 -1610
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ADVICE OF COUNSEL
November 19, 2018
To the Requester:
Mr. Rusty L. Johnson
Dear Mr. Johnson:
FACSIMILE: 717- 787 -0806
WEBSITE: www.othir-s.pa.gov
18 -563
This responds to your letter dated September 12, 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
75`77S. § 1101 et sew., would impose prohibitions or restrictions upon an individual with
wire is ine county
Facts: You request an advisory from the Commission based upon the following
suFm—itted facts.
You are currently serving as a School Director for the Pocono Mountain School
District ( "School District ") and as President of the School District School Board. You
intend to seek election as a Commissioner for Monroe County ( "County "), Pennsylvania,
during the next municipal election. Your wife is currently serving as the County
Treasurer.
The question that is presented is whether, given that your wife is the County
Treasurer, the Ethics Act would impose prohibitions or restrictions upon you with regard
to seeking election or serving as a County Commissioner. You note that if elected as a
County Commissioner, you could not simultaneously serve as a County Commissioner
and a School Director for the School District. See, 24 P.S. § 3 -322.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(l 1) 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. §§ 11070 0 , (11). An advisory only affords a
defense to the extent the requester has truthfully disc osed all of the material facts.
Sections 1103(a) and 11030) of the Ethics Act provide:
Johnson, 18 -563
o�l5er 19, 2018
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§ 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
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(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.
Johnson, 18 -563
o�6er 19, 2018
Page 3
"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 office /employment or confidential
information received lholdinj 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 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 fora particular result.
Juliante, Order 809. Subject to certain statutory exceptions, in each instance of a voting
coi—ct, 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 officiallpublic 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.
The Ethics Act would not prohibit or restrict you from seeking election or serving
as a County Commissioner while your wife is serving as the County Treasurer. If you
would be elected as a County Commissioner, upon assuming said position, you would
in that capacity be a public official subject to the provisions of the Ethics Act. (It is
parenthetically noted that in your current capacity as a School Director, you are a public
official subject to the Ethics Act.)
Your wife is a member of your "immediate family" as that term is defined in the
Ethics Act. 65 Pa.C.S. § 1102. Because your wife is the County Treasurer, upon taking
office as a County Commissioner, you would have a conflict of interest under Section
1103(a) of the Ethics Act in matters involving the County Treasurer if: (1) you would be
consciously aware of a private pecuniary benefit for you or your wife; (2) your action(s)
would constitute one or more specific steps to attain that benefit; and (3) neither of the
statutory exclusions to the definition of "conflict" or "conflict of interest" as set forth in the
Ethics Act, 65 Pa.C.S. § 1102, would be applicable. Cf., Kistler, supra.
Johnson, 18 -563
o� vem6er 19, 2018
Page 4
In each instance of a conflict of interest, you would be required to abstain from
participation, which would include voting unless one of the statutory exceptions of
Section 11030) 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) you are currently serving
as a coo Director for the Pocono Mountain School District ( "School District') and as
President of the School District School Board; (2) you intend to seek election as a
Commissioner for Monroe County ( "County "), Pennsylvania, during the next municipal
election; and (3) your wife is currently serving as the County Treasurer, you are advised
as follows.
The Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et
se q., would not prohibit or restrict you from seeking election or serving as a County
Commissioner while your wife is serving as the County Treasurer. If you would be
elected as a County Commissioner, upon assuming said position, you would in that
capacity be a public official subject to the provisions of the Ethics Act. (It is
parenthetical) noted that in your current capacity as a School Director, you are a public
official subject to the Ethics Act.)
Your wife is a member of your "immediate family" as that term is defined in the
Ethics Act. Because your wife is the County Treasurer, upon taking office as a County
Commissioner, you would have a conflict of interest under Section 1103(a) of the Ethics
Act in matters involving the County Treasurer if: �2� 1 you would be consciously aware of
a private pecuniary benefit for you or your wife; your action(s) would constitute one
or more specific steps to attain that benefit; and () neither of the statutory exclusions to
the definition of conflict or conflict of interest as set forth in the Ethics Act, 65 Pa.C.S.
§ 1102, would be applicable.
In each instance of a conflict of interest, you would be required to abstain from
participation, which would include voting unless one of the statutory exceptions of
Section 11030) of the Ethics Act would be applicable. Additionally, the disclosure
requirements of Section 1103(j) 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.
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ovem er 19, 2018
Page 5
Any such appeal must be in writingg and must be acts
received at the Commission within thirty (30) days of the date of this
Advice pursuant to 51 Pa. Code § f3.2(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