HomeMy WebLinkAbout19-505 GrimesPHONE: 717- 783 -1610
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ADVICE OF COUNSEL
February 11, 2019
To the Requester:
Mr. Nicholas D. Grimes
Dear Mr. Grimes:
FACSIMILE: 717- 787 -0806
WEBSITE: www.ethics.pa.gov
19 -505
This responds to your letter dated January S, 2019, 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
Pa.7S. § 1101 et seq., would impose prohibitions or restrictions upon an individual
serving as a city treasurer /city tax collector with regard to entering into a private
services agreement/contract with a consultant company to provide research and clerical
services to the consultant company, where: (1) the consultant company has a contract
with the city for the provision of various services including economic development
consulting services; and (2) the private services agreement/contract between the
individual and the consultant company would prohibit the individual from providing any
services for clients or projects located in the county in which the city is located.
Facts: As the Treasurer and Tax Collector for the City of Williamsport ( "Cit "}
To--ca-fed in Lycoming County, Pennsylvania, you request an advisory fromhe
Commission based upon submitted facts that may be fairly summarized as follows.
A consultant company named JDM Consultants, LLC (the "Company "), d /b /a
Penn Strategies, has a contract with the City the "City Contract ") to provide various
services including economic development consulting services to the City. You state that
in your capacity as the City Treasurer, you did not vote on or authorize the execution of
the City Contract. As the City Treasurer, you are responsible for authorizing payments
from the City Treasury to the Company as outlined in the City Contract.
You propose to enter into a private services agreement/contract (the "Services
AgreementlContract ") with the Companyy to provide research and clerical services to the
Company. The Services AgreementlContract would prohibit you from providing any
services for clients or projects located in Lycoming County. You state that your
proposed work with the Company would not interfere with or use resources from your
position as the City Treasurer.
Grimes, 19 -505
F—eFruary 11, 2019
Page 2
Based upon the above submitted facts, you ask whether the Ethics Act would
impose any prohibitions or restrictions upon you with regard to entering into the
Services Agreement/Contract with the Company.
Discussion: It is initial) 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. §§ 1107(10), (11). An advisory only affords a
defense to the extent the requester has truthfully disclosed all of the material facts.
It is further initially noted that, pursuant to the same aforesaid Sections of the
Ethics Act, an opinion /advice may be given only as to prospective (future) conduct. To
the extent that your inquiry relates to conduct that has already occurred, such past
conduct may not be addressed in the context of an advisory opinion. However, to the
extent your inquiry relates to future conduct, your inquiry may and shall be addressed.
As the City Treasurer /City Tax Collector, you are a public official subject to the
provisions of the Ethics Act.
Section 1103(a) of the Ethics Act provides:
§ 1103. Restricted activities
(a) Conflict of interest. -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
65 Pa.C.S. § 1103(a).
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.
Grimes, 19 -505
F6 ruary 11, 2019
Page 3
"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 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 officiallpublic employee would
be required to abstain from participation. The abstention requirement would extend to
any use of authority of office including, but not limited to, discussing, conferring with
others, and lobbying for a particular result. duliante, Order 809.
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 11 03(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 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 applying the above provisions of the Ethics Act to your inquiry, you are advised
as follows.
Section 1103(a) of the Ethics Act, pertaining to conflict of interest, imposes
restrictions upon public officials and public employees. Therefore, Section 1103((a) of
the Ethics Act would impose restrictions upon you in your capacity as a public official,
rather than upon you in your private capacity.
Section 1103(a) of the Ethics Act would not prohibit you, in your private capacity,
from entering into the Services Agreement/Contract with the Company. Under the
submitted facts, there is no basis to conclude that the Company would be a business
with which you are /would be associated. Therefore, you are advised that you would not
have a conflict of interest and would not violate Section 1103(a) of the Ethics Act in your
official capacity as the City Treasurer /City Tax Collector by participating in matter(s)
involving the Company unless (1) you would be consciously aware of a private
pecuniary benefit for you, a member of your immediate family, or a business with which
Grimes, 19 -505
r�uary 11, 2019
Page 4
you or a member of your immediate family is associated; (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, saga. In each
instance of a conflict of interest, you would be required to aTstainFram participation.
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.
Conclusion: Based upon the submitted facts that: (1) you are the Treasurer and
Tax Coll ec or for the City of Williamsport ( "City "), located in Lycoming County,
Pennsylvania; (2) a consultant company named JDM Consultants, LLC the
"Company "), dlbla Penn Strategies, has a contract with the City (the "City Contract ") to
provide various services including economic development consulting services to the
City; (3) in your capacity as the City Treasurer, you did not vote on or authorize the
execution of the City Contract; (4) as the City Treasurer, you are responsible for
authorizing payments from the City Treasury to the Company as outlined in the City
Contract, ( ) you proppose to enter into a private services agreementicontract (the
"Services Agreement/Contract") with the Company to provide research and clerical
services to the Company; (6) the Services Agreement/Contract would prohibit you from
providing any services for clients or projects located in L coming County; and (7) your
proposed work with the Company would not interfere with or use resources from your
position as the City Treasurer, you are advised as follows.
As the City Treasurer/City Tax Collector, you area public official subject to the
provisions of the Public Official and Employee Ethics Act Ethics Act "), 65 Pa.C.S. §
1101 et seg. Section 1103(x) of the Ethics Act, pertaining to conflict of interest,
imposes restrictions upon public officials and public employees. Therefore, Section
1103 (a) of the Ethics Act would impose restrictions upon you in your capacity as a
public official, rather than upon you in your private capacity.
Section 1103(a) of the Ethics Act would not prohibit you, in your private capacity,
from entering into the Services Agreement/Contract with the Company. Under the
submitted facts, there is no basis to conclude that the Company would be a business
with which you are /would be associated. Therefore, you are advised that you would not
have a conflict of interest and would not violate Section 1103(a) of the Ethics Act in your
official capacity as the City Treasurer/City Tax Collector by participating in matter(s)
involving the Company unless: (1) you would be consciously aware of a private
pecuniary benefit for you, a member of your immediate family, or a business with which
you or a member of your immediate family is associated; (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. In each instance of a conflict of
interest, you would be required to abstain from participation.
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.
Grimes, 19 -505
e ruary 11, 2019
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 writingg and must be _actu�all
received at the Commission within thirty (30) days of the date o is
Advice pursuant to 59 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 (797 - 787 -0806. Failure to
Me such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal.
Sincerely,
Robin M. Hittie
Chief Counsel