HomeMy WebLinkAbout18-568 ConfidentialPHONE: 717-783-1610
TOLL FREE: 1-800-932-0936
To the Requester:
i
STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL
November 30, 2018
FACSIMILE: 717-787-0806
WEBSITE: www.ethics. a. ov
This responds to your letter dated September 25, 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
577S. § 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, the
E, and C divisions and departments for the salaries and benefits of C employees,
where: (1) the individual's daughter is employed with the C as an F for the D; and (2)
the husband of the individual's daughter is employed with the C as a G with the E.
Facts: You request a confidential advisory from the Commission based upon
su5mitted 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 daughter is employed with the C as an F for the D. The D sets the salaries
of the Fs. Your daughter's husband is employed with the C as a G with the E. The
salaries of the Gs are set by a collective bargaining agreement that must be approved
by B.
B annually votes on a C budget that contains line items allocating funds to the D,
the E, and C divisions and departments for the salaries and benefits of C employees.
Based upon the above submitted facts, you 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
the 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 an A of B, you are a public official subject to the provisions of the Ethics Act.
Confidential Advice, 18-568
overner
Page 2
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(a) are defined in the Ethics Act as
follows:
§ 1102. Definitions
"Conflict" or "Gonflict of interest." Use by a public
official or public employyee 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
Confidential Advice, 18-568
November
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 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 votins, 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 1103Q) of the Ethics Act would require the public official/public
employee to abstain andd 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.
A conflict of interest would not exist to the extent the "de minimis exclusion"
and/or the "class/subclass exclusion" set forth within the Ethics Act's definition of the
term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, would be applicable.
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.
In order for the class/subclass exclusion to applyy, two criteria must be met: (1)
the affected public official/public employee, immediate family member, or business with
which the public official/public employee or immediate family member is associated
must be a member of a class consisting of the general public or a true subclass
consisting of more than one member; and (2) the public official/public employee,
immediate family member, or business with which the public official/public employee or
immediate family member is associated must be affected "to the same degree" (in no
way differently) than the other members of the class/subclass. 65 Pa.C.S. §� 1102; see,
Kablack, Opinion 02-003; Rubenstein, Opinion 01-007. The first criterion of the
exclus on is satisfied where the members of the proposed subclass are similarly
situated as the result of relevant shared characteristics. The second criterion of the
exclusion is satisfied where the individual/business in question and the other members
of the class/subclass are reasonably affected to the same degree by the proposed
action. Kablack, supra.
In ap lying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
Your daughter is a member of your "immediate family" as that term is defined in
the Ethics Act. 65 Pa.C.S. § 1102.
Your daughter's husband ---your son -in -law —is not a member of your "immediate
family" as that term is defined in the Ethics Act. Cf., PuTice v. State Ethics Commission,
Confidential Advice, 18-568
ovem er
Page 4
713 A.2d 161 (Pa. Cmwlth. 1998), allocatur denied, 557 Pa. 642, 732 A.2d 1211 1998)
(Holding that a relative not encompasspd y the family relationships listed in the Ethics
Act's definition of the term "immediate Tamil "—in that case, a son -in -law —would not be
considered a member of immediate Tamily. Therefore, a financial impact upon your
son-in-law would not, in and of its,
form the basis for a conflict of interest for you.
Subject to the de minimis exclusion and the class/subclass exclusion, ursuant to
Section 1,M(a of the Ethics Act, you generally would have a conflict ofinterestin
matters before B that would financially impact you, a member of your immediate family
such as your daughter, or a business with which you or a member of your immediate
family is associated. You are advised that you would have a conflict of interest with
regard to voting on line item(s) of the 2019 C budget that would include funding for your
daughter's salary or employment benefits unless the class/subclass exclusion to the
definition of "conflict" or "conflict of interest" 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 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 otther 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 H.
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 daughter
is employed with the C as an F for the D; (3) the D sets the salaries ohe Fs; J4� your
daughter's husband is employed with the C as a G with the E; (5) the salaries ote Gs
are set by a collective bargaining agreement that must be approved by B; and (6) B
annually votes on a C budget that contains line items allocating funds to the D, the E,
and C divisions and departments for the salaries and benefits of C employees, 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 she . Your
daughter is a member of your "immediate family" as that term is defineTin the Ethics
Act. 65 Pa.C.S. § 1102.
Your daughter's husband ---your son -in -law —is not a member of your "immediate
family" as that term is defined in the Ethics Act. A financial impact upon your son-in-law
would not, in and of itself, form the basis for a conflict of interest for you.
Subject to the de minimis exclusion and the class/subclass exclusion set forth in
the Ethics Act's definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. §
1102, pursuant to Section 1103(a of the Ethics Act, you generally would have a conflict
of interest in matters before B t at would financially impact you, a member of your
immediate familysuch as your daughter, or a business with which you or a member of
your immediate amil is associated. You would have a conflict of interest with regard to
voting on line items) of the 2019 C budget that would include funding for your
daughter's salary or employment benefits unless the class/subclass exclusion to the
definition of "conflict" or "conflict of interest" 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
Confidential Advice, 18-568
avern er
Page 5
requirements of Section 11030) 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.
Any such appeal must be in writingg and must be actuallLi
received at the Commission within thirty (30) days of the dated
Advice ursuant 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,
?4
ob�in M. Hittie
Chief Counsel