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STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
July 22, 2019
To the Requester:
Mr. Jonathan P. Foster, Sr., Esquire
Foster Law Office
Dear Mr. Foster:
FACSIMILE: 717-787-0806
WEBSITE:.WWW.9thiCS.Pa.9oV
19-532
This responds to your letter dated June 20, 2019, and your submission received
June 25, 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
7a.S. 1-- 1101 et seq., would impose prohibitions or restrictions upon an individual
employe4 as the—Br-a--dford County Airport Manager with regard to purchasing a used
airplane from the Bradford County Airport Authority,
Facts: You have been authorized by Kerry Spaulding ("Mr. Spaulding"to request
an advisory from the Commission on his behalf. You have submitted facts tat may be
fairly summarized as follows.
Mr. Spaulding is employed as the Bradford Count Airport Mana er (("County
Airport Manager"), in which capacity he reports to the Boalf Directors ("Board") of the
Bradford County Airport Authority ("Airport Authority") and the Bradford Count
Commissioners. You have submitted a copy of a job description (the "Job Description'
for the position of County Airport Manager, which document is incorporated herein by
reference.
A few years ago, and before Mr. Spaulding was hired as the County Airport
Manager, the Airport Authority purchased a used airplane (the "Airplane") for a flight
schoo?. The Airport Authority paid $34,000,00 for the Airplane and installed a new
$28,000.00 engine in the Airplane. The Airplane requires avionics u � rades to its
communication system that would cost approximately $15,000.00 to $20,M(0.00.
The Airport Authority&lans to sell the Airplane because the Airport Authority
decided to close the flight s ool due to liability and insurance issues and the cost of
maintaining an aircraft. You state that the Airport Authority does not have to seek bids
in order to sell the Airplane and that the Airport Authority could sell the Airplane to
anyone through a private sale, an advertised public sale to the highest bidder, or
another method. You further state that the price of the Airplane would be determined by
the A Authority Board, which consists of a Bradford County Commissioner, the
Chief Airport Clerk of Bradford County, and three experienced pilots.
Foster, 19-532
July 22, 2019
Page 2
Mr. Spaulding is interested in purchasing the Airplane for his personal use.
Based upon the above submitted facts, you ask whether the Ethics Act would
permit Mr. Spauldingto purchase the Airplane from the Airport Authority through a
I
private sale or, in e alternative, through an advertised public sale to the highest
bidder.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
the ics 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(1 O�advisory , (11). An advisoon affords a
defense to the extent the requester has truthfully disc osed all of the material lzalcts.
As the County Airport Manager, Mr. Spaulding i employee subject to
i g is a public emplo
the provisions of the Ethics Act, Wis conclusion s based upon the Jo Description,
which when reviewed on an objective basis, indicates clearly that the power exists to
take or recommend official action of a non -ministerial nature with respect to one or more
of the following: contracting; procurement; administering or monitoring grants or
subsidies; planning or zoning; inspecting; licensing; regulating; auditing; or other
activity(ies) where the economic impact is greater than de minimis on the interests of
another person.
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 priva e
pecuniary benefit of himself, a member of his immediate
amily 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 ic or a subclass consisting of an industrx/ occupation or
other group which includes the public o Ricial 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
Foster, 19-532
July 22, 2019
Page 3
the performance of duties and responsibilities unique to a
particular public office or position of public employment.
65 Pa.C.S. § 1102.
Subject to the statutory exclusions to the Ethics Acts 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 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.
Section 11 03(f of the Ethics Act, pertaining to contracting, provides as follows:
§ 1103. Restricted activities
(f) Contract. --No public official or public employee or
his spouse or child or any business in which the person or
his spouse or child is associated shall enter into any contract
valued at $500 or more with the governmental body with
which the public official or public employee is associated or
any subcontract valued at $500 or more with any person
who has been awarded a contract with the governmental
body with which the public official or public employee is
associated, unless the contract has been awarded through
an open and public process, including prior, public notice and
subsequent public disclosure of all proposals considered and
contracts awarded. In such a case, the public official or
public employee shall not have any supervisory or overall
responsibility for the implementation or administration of the
contract. Any contract or subcontract made in violation of
this subsection shall be voidable by a court of competent
jurisdiction if the suit is commenced within 90 days of the
making of the contract or subcontract.
65 Pa.C.S. § 1103ft
The term "contract" is defined in the Ethics Act as follows:
§ 1102. Definitions
"Contract." An agreement or arrangement for the
acquisition, use or disposal by the Commonwealth or a
political subdivision of consulting or other services or of
supplies,
pp"", materials, equipment, land or other personal or real
property. The term shall not mean an agreement or
arrangement between the State or political subdivision as
one party and a public official or public employee as the
other party, concerning his expense, reimbursement, salary,
wage, retirement or other benefit, tenure or other matters in
consideration of his current public employment with the
Commonwealth or a political subdivision.
Foster 19-532
ffy 7-2�, 2 0 19
Page 4
65 Pa.C.S. § 1102.
Section 1103(f) does not operate to Make contracting with the governmental
body permissible where it is otherwise prohibited. Rather, where a public official/public
employee, his spouse or child, or a business with which he, his spouse or child is
associated, is otherwise appropriately contracting with the governmental body, or
subcontracting with any person who has been awarded a contract with the
governmental body, in an amount of $500.00 or more, Section 1103(f) requires that an
open and public process" be observed as to the contract with the governmental body.
Section 1103(f) of Ethics Act also provides that the public official/public employee
may not have any supervisory or overall responsibility as to the implementation or
administration of the contract with the governmental body.
In nl i the above provisions of the Ethics Act to the instant matter, you are
olring e
advised as o ows.
An agreement or arrangement whereby Mr. Spaulding would purchase the
Airplane from the Airport Authority would constitute a contract" as that term is defined
in the Ethics Act.
The Ethics Act would not prohibit Mr. Spaulding from purchasing the Airplane
from the AirpAuthority subject to the conditions that: (1) he wouldnot use the
authority of his public position as the County Airport Manager, or confidential
information accessed or received as a result of being in is public position, to further his
purchase of the Airplane from the Airport Authority in contravention of Section 1103(a)
of the Ethics Act; and (2) the restrictions and requirements of Section 1103(f) ofthe
Ethics Act would be observed as to any contract between Mr. Spaulding and the Airport
Authority for the purchase of the Airplane, #Tie
See, Kistler v. State Ethics Commission,
610 Pa. 516, 22 A. 3d 223 (2011), regarding requ irements for an "open and public
process.")
The propriety of the proposed conduct has only been addressed under the Ethics
Act; the applicabilit� of any other statute, code, ordinance, regulation or other code of
conduct other than he 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 Municipality Authorities Act.
Conclusion,:Based upon the submitted facts that: (1) Kerry Spaulding ("Mr.
Spaulding' ) is employed as the Bradford County Airport Manager (,',County Airport
manager"), in which capacity he reports to the Board of Directors ( Board) of the
Bradford County Airport Authority ("Airport Authority") and the Bradford County
Commissioners; (2) a few years ago, and before Mr. Spauldingwas hired as the County
Airport Manager, the Airport Authority purchased a used airplane (the "Airplane") for a
flight school; (3) the Airport Authority paid $34,000.00 for the Airplane and installed a
new $28,000.00 engine in the Airplane; (4) the Airplane requires avionics u rades to
its communication system that would cost approximately $15,000.01 Mom; (5)
the Airport Authority plans to sell the Airplane because the Airport Authority decided to
close the flight school due to liability and insurance issues and the cost of maintaining
ning
an aircraft; (6) the Airport Authority does not have to seek bids in order to sell the
Airplane, and the Airport Authoritycould sell the Airplane to anyone through a private
sale, an advertised public sale to Ihe highest bidder, or another method; (7) the price of
the Airplane would e determined by the Airport Authority Board, which consists of a
Bradford County Commissioner, the Chief Clerk of Ldford County, and three
experienced pilots; and �8) Mr, Spaulding is interested in purchasing the Airplane for his
personal use, you are advised as follows.
As the County Airport Manager, Mr. Spaulding is a public employee subject to
the provisions of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. §
Foster, 19-532
July 22, 2019
Page 5
1101 et sreg, An agreement or arrangement whereby Mr. Spaulding would purchase the
from
Airplane7lrom the Airport Authority would constitute a "contract'" as that term is defined
e Ethics Act. The Ethics Act would not prohibit Mr. Spaulding from purchasing the
in h
Airplane from the Airport Authority subject to the conditions that: (1) he would not use
the authority of his public position as the County Airport Manager, or confidential
information accessed or received as a result of being in his public position, to further his
purchase of the Airplane from the Airport Authority in contravention of Section 11 03(a)
of the Ethics Act, and (2) the restrictions and requirements of Section 1103(f) of the
Ethics Act would 6e observed as to any contract between Mr. Spaulding and the Airport
Authority for the purchase of the Airplane.
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 writiny,g and must be acts
received at the Commission within thirty (31 days of the date of this
AdVIZe " ursuant to 51 Pa. Code § 112(h). The appeal may be
receivecfat the Commission by hand delivery, United States mail,
delivery service, or by FAX transmission (717-7870806). Failure to
file such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal.
Sincerely,
Robin M. H i t t i e
Chief Counsel