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To the Requester:
ADVICE OF COUNSEL
March 7, 2019
Mr. Sean W. Logsdon, Esquire
Donald G. Karpowich, Attorney -at -Law, P.C.
Dear Mr. Logsdon:
FACSIMILE: 717- 787 -0806
WEBSITE: www.ethics.pa.gov
19 -509
This responds to your letter dated. January 23, 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
7577S. § 1101 et seg., would impose prohibitions or restrictions upon a borough
council member, who is employed with a medical cannabis manufacturing plant located
in the borough, with regard to participating in discussions, deliberations, or votes of
borough council pertaining to concerns or complaints regarding an odor emanating from
the manufacturing plant, land use applications Involving the manufacturing plant, or
other matters related to the manufacturing plant.
Facts: You have been authorized by Rose Diel ( "Ms. Diel ") to request an advisory
Tom the Commission on her behalf. You have submitted facts that may be fairly
summarized as follows.
Ms. Diel was recent) appointed as a Member of Council for the Borough of
White Haven ( "Borough "). In a private capacity, Ms. Die[ is employed with a medical
cannabis manufacturing plant (the "Manufacturing Plant ") that opened in the Borough
before she was appointed to Borough Council.
Several owners of property adjacent to the Manufacturing Plant have attended
Borough Council meetings to voice their complaints about an odor emanating from the
Manufacturing Plant, and these property owners have urged Borough Council to take
action with respect to the odor. Concerns or complaints regarding the odor emanating
from the Manufacturing Plant and land use applications involving the Manufacturing
Plant may be brought before Borough Council in the future.
Based upon the above submitted facts, you seek guidance as to whether the
Ethics Act would permit Ms. Diel to participate in discussions, deliberations, or votes of
Borough Council pertaining to concerns or complaints regarding the odor emanating
from the Manufacturing Plant, land use applications involving the Manufacturing Plan ?,
or other matters related to the Manufacturing Plant.
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
Logsdoonn, 19 -509
March 7, 2019
Page 2
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 Borough Council Member, Ms. Diel is 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
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 wo 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
Logsdon, 19 -509
aM rch 7, 2019
Page 3
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 %holding such a public position for the private pecuniary benefit
of the public officiallpic 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, conferrin' with others, and lobbying for a particular result.
Juliante, Order 809. Subject to certain statutory exceptions, in each instance of a voting
coffin fact, 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 I I 03(a) of the
Et ics 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 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.
Having established the above general principles, you are advised as follows.
Lo sd�on, 19.509
March 7, 2019
Page 4
The Manufacturing Plant is a business with which Ms. Diel is associated in her
capacity as an employee. Ms. Diel would have a conflict of interest and would violate
Section 1103(a) of the Ethics Act by participating in discussion(s), deliberation (s), or
vote(s) of Borough Council pertaining to concerns or complaints regarding the odor
emanating from the Manufacturing Plant, land use applications involving the
Manufacturing Plant, or other matter(s) related to the Manufacturing Plant if: (I) she
would be conscious) aware of a private pecuniary benefit for herself or the
Manufacturing Plant; (2) her 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.
As noted above, in each instance of a conflict of interest, Ms. Diel 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 Borough Code.
Conclusion: Based upon the submitted facts that: (1) Rose Diel ( "Ms. Die] ") was
recently appointed as a Member of Council for the Borough of White Haven ( "Borough ");
(2) in a private capacity, Ms. Diel is employed with a medical cannabis manufacturing
pplant (the "Manufacturing Plant ") that opened in the Borough before she was appointed
io Borough Council; (3) several owners of property adjacent to the Manufacturing Plant
have attended Borough Council meetings to voice their complaints about an odor
emanating from the Manufacturing Plant, and these property owners have urged
Borough Council to take action with respect to the odor; and (4) concerns or complaints
regarding the odor emanating from the Manufacturing Plant and land use applications
involving the Manufacturing Plant may be brought before Borough Council in the future,
you are advised as follows.
As a Borough Council Member, Ms. Diel is a public official subject to the
provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §
1 101 et seq. The Manufacturing Plant is a business with which Ms. Diel is associated in
her capacity as an employee. Ms. Diel would have a conflict of interest and would
violate Section 1103(a of the Ethics Act by participating in discussion(s),
deliberation(s), or vote(s) of Borough Council ertaining to concerns or complaints
regarding the odor emanating from the Manufacturing Plant, land use applications
involving the Manufacturing Plant, or other matter(s) related to the Manufacturing Plant
if: (1) she would be consciously aware of a private pecuniary benefit for herself or the
Manufacturing Plant; (2) her 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, Ms. Die] 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(11) of the Ethics Act, an Advice is a complete defense
in any enforcement proceeding initiated by the Commission, and evidence of good faith
Logsdon, 19 -509
March �� , 2019
Page 5
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
vice 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 (717- 787 -0806. Failure to
We such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal.
Sincerely,
. rn 1
Robin M. Hittie
Chief Counsel