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Home My WebLink About19-530 FosterPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 _)Z STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 F13 DILT1141 :901 June 27, 2019 To the Requester: Mr. Jonathan P. Foster, Jr., Esquire Dear Mr. Foster: FACSIMILE: 717-787-0806 WEBSITE: v�Wyyjq1jjjcs,pa.ggy 19-530 This responds to your letter dated June 4, 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 se ., would impose prohibitions or restrictions upon an individual serving as a county commissioner with regard to using county staff to send emails and Fer'O rm other functions related to assisting the individual with his campaign for.election 0 a position on the executive board of the County Commissioners Association of Pennsylvania. Facts: As Solicitor for Bradford County County Pennsylvania, you have been autho i7ed by an individual (the "Individual") who is a County Commissioner to request an advisory from the Commission on his behalf. You have submitted facts that may be fairly summarized as follows. The Individual is interested in running for election to a position on the executive board of the County Commissioners Association of Pennsylvania ("CCAP"), such as that of Vice President. Only current county commissioners would be eligible to serve in such an elected position. The narrow question that you have posed is whether the Ethics Act would permit the Individual to use County staff, such as administrative assistants, to send emalls and r)erform other functions related to assisting the Individual with his campaign for election to a position on the executive board of the CCAP. Discussion: It is initial) noted that pursuant to Sections 1107(10) and 1 107(l 1) of the Ethics -Act, 65 Pa.C.S. K§ 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 disc osed all of the material facts. Foster, 19-530 Uu—n—e27, 2019 Page 2 It is further initially noted that this Advice is limited to addressing the narrow question posed. As a CountyCommissioner, the Individual is a public official subject to the provisions of the Ethics Act. Sections 11 03(a) and 11036) 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. (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 remainingtwo members of the governingbody 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. 1116"SM F 10 1 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 emplo ee of the authority of his office or employment or any confidential information received through his holding public office or employment for the ate -benefit of himself, a member of his immediatePriy pecuniary 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 Foster, 1 9-5�30 June 7, 2019 Page 3 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 he performance of duties and responsibilities uniqUe to a particular public office or position of public employment. 65 PaL.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 official/public 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 farticular result. Juliante, Order 809. Subject to certain statutory exceptions, in each instance of a voting co in 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. The use of government staff, time, equipment, facilities, or property for non- governmental purposes —including business, personal, or political purposes —is Eeneral prohibited and may farm the basis for a violation of Section 1103(a) of the thics Lt. See, 'has e.a.. Dennis, )pinion 07-003; Confidential Opinion, 05-001. The 0- CommissionI ng he a government offices,Taci Ries, equipment, and personnel are to be used for governmental purposes and not for private, business or campaign/re- election activities. Id. One of the exclusions to the statutory definition of "conflict" or "conflict of interest," referred to herein as 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; Schweinsbum. Order 900. The determination o whether tie de —minimis exclusion Tp-plies in a given instance is fact specific and is made on a case -by -case basis. See, Seropian v. State Ethics Commission, 20 A.3d 534 (Pa. Cmwlth. 2011). In applying the above provisions of the Ethics Act to the instant matter, you are advised thatsubject to the "de minimis" exclusion, Section 1103(a) of the Ethics Act would prohibit the Individual from using County administrative assistants and/or other County staff to send emails or perform other functions related to assistinKhe Individual with his campaign for election to a position on the executive board of the CAP. 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 Pthan 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 Kunty Code. Foster, 1 g- 30 u�,7, 2 019 Page 4 Conclusion. Based upon the submitted facts that: 1) the individual on whose behalfyou 'have inquired (the "Individual") is a County Commissioner for Bradford County (",County") Pennsylvania; (2) the Individual is interested in running for election to a position on the executive board of the County Commissioners Association of Pennsylvania ("CCAP"), such as that of Vice President; and (3) only current county commissioners would be eligible to serve in such an elected position, you are advised as follows. As a County Commissioner the Individual is a public official subject to the provisions of the Public Official and Employee Ethics Act (""Ethics Act"), 6 Pa.C.S. § 1101 et seq. Subject to the "de minimis" exclusion set forth in the Ethics Act's definition of "conTlict or "conflict of interest," 65 Pa.C.S. § 1102, Section 1103(a) of the Ethics Act would prohibit the Individual from using County administrative assistants and/or other Counter staff to send emails or perform other functions related to assistin the Individual with his campaign for election to a position on the executive board of the CAP. 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 writing and must be actuall received at the Commission within thirty (30) days of the date-o7 this mice ursuant to Sir Pa. Code § 1f3.2(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, h okinHittie Chief Counsel