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To the Requester:
ADVICE OF COUNSEL
December 6, 2018
FACSIMILE: 717- 787 -0806
WEBSITE: www.ethics.pa.gov
`E:3'rift]
This responds to your undated letter postmarked October 17, 2018, received
October 19, 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
P
a.TS. § 1101 et seq., would impose prohibitions or restrictions upon an individual
serving as an A of B for the C, with regard to participating in deliberations, votes, or
other actions of B pertaining to the potential outsourcing/sale of the C's D operations to
the E, where the individual's brother is employed with the E as an F.
Facts: You request a confidential advisory from the Commission based upon
suemitted facts which may be fairly summarized as follows.
You are an A of B. The D operations in the C are currently conducted by the G.
The C is considering outsourcing /selling its D operations to the E.
Your brother is employed with the E as an F. You state that your brother would
make no profit or additional money from any outsourcing/sale of the C's D operations to
the E.
Based upon the above submitted facts, the question that is presented is whether
you would have a conflict of interest with regard to participating in deliberations, votes,
or other actions of B pertaining to the potential outsourcing/sale of the C's D operations
to the E.
Discussion: It is initial) noted that pursuant to Sections 1107(10) and 1107(11) of
e Ethics—Act, 65 Pa.C.S. y§§ 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.
Sections 1103(a) and 11030) of the Ethics Act provide:
§ 1103. Restricted activities
Confidential Advice, 18 -570
December 6,
Page 2
(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), (j).
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 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
the performance of duties and responsibilities unique to a
particular public office or position of public employment.
Confidential Advice, 18 -570
ecem ber 6,
Page 3
"Immediate family." A parent, spouse, child, brother
or sister.
"Business." An 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.
apolitical subdivision." Any county, city, borough,
incorporated town, township, school district, vocational
school, county institution district, and any authority, entity or
body organized by the aforementioned.
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 byy 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 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, t, 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 1 TUN ao t e
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
Acct, a public officiallpublic 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.
In ap lying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
Confidential Advice, 18 -570
ecem er ,
Page 4
The E is a "political subdivision" and not a "business" as defined by the Ethics
Act. Your brother is a member of your "immediate family" as that term is defined in the
Ethics Act.
Since the E is a "political subdivision" and not a "business" as defined by the
Ethics Act, you would not have a conflict of interest under Section 1103(a) of the Ethics
Act in matters before B that would financially impact the E but that would not financially
impact you, a member of your immediate family such as your brother, or a business with
which you or a member of your immediate family is associated. A pecuniary benefit
flowing solely to a governmental entity such as the E would not form the basis for a
conflict of interest under Section 1103(a) of the Ethics Act. See, Confidential Opinion,
01 -006; McCarrier /Anderson, Opinion 98 -008; Warso, Order 974.
Therefore, you would not have a conflict of interest and would not violate Section
1103(a) of the Ethics Act by participating in deliberation(s), vote(s), or other action(s) of
B pertaining to the potential outsourcing/sale of the C's D operations to the E unless: (1)
you would be consciously aware of a private pecuniary benefit for yourself, a member of
your immediate family such as your brother, or a business with which you or a member
of your immediate family is associated; (2) our action(s) would constitute one or more
sppecific steps to attain that benefit; and (31 neither the de minimis exclusion nor 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.
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 H.
Conclusion: As an A of B for the C, 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 seq. Based upon the submitted facts that: (1) the D operations in the C are
currently conducted b the G; (2) the C is considering outsourcing /sellin its D
operations to the E; (3) your brother is employed with the E as an F; and (4) your
brother would make no profit or additional money from any outsourcing /sale of the C's D
operations to the E, you are advised as follows.
The E is a "political subdivision" and not a "business" as defined by the Ethics
Act. Your brother is a member of your "immediate family" as that term is defined in the
Ethics Act.
Since the E is a "political subdivision" and not a "business" as defined by the
Ethics Act, you would not have a conflict of interest under Section 1103(a) of the Ethics
Act in matters before B that would financially impact the E but that would not financially
impact you, a member of your immediate family such as your brother, or a business with
which you or a member of your immediate family is associated. A pecuniary benefit
flowing solely to a governmental entity such as the E would not form the basis for a
conflict of interest under Section 1103(a) of the Ethics Act.
Therefore, you would not have a conflict of interest and would not violate Section
1103(a) of the Ethics Act by participating in deliberation s), vote(s), or other action(s) of
B pertaining to the potential outsourcing sale of the C's operations to the E unless: (1)
Confidential Advice, 18 -570
ecem er ,
Page 5
you would be consciously aware of a private pecuniary benefit for yourself, a member of
your immediate family such as your brother, or a business with which you or a member
of your immediate family is associated; 2) our action(s) would constitute one or more
sped fic steps to attain that benefit; an (31 neither the de minimis exclusion nor 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.
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.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Pursuant to Section 1107(l 1) 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 actually
received at the Commission within thirty (30) days of the date of this
Advice a pursuant to 59 Pa. Code § 93.2(h). The appeal may be
received at the Commission by hand delivery, United States mail,
delivery service, or by FAX transmission (797 - 787 - 0806). Failure to
file such an appeal at the Commission Within thirty (30) days may
result in the dismissal of the appeal.
Sincerely,
s 'V4
obin M. Hittie
Chief Counsel