HomeMy WebLinkAbout19-538 ConfidentialPHONE: 717-783-1610
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To the Requester.
STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
August 19,2019
FACSIMILE� 717-787-0806
WEBSITE: www.othics.pa.gov
19-538
This responds to your letter dated July 17, 2019, 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-.C-S. § 1101 et seq., would impose prohibitions or restrictions upon an individual
serving as an A for P-o I ical Subdivision B with regard to purchasing a parcel of property
owned by Political Subdivision B.
Facts: You have been authorized by Individual C to request a confidential
advisory from the Commission on his behalf. You have submitted facts that may be
fairly summarized as follows.
Individual C. is an A for Political Subdivision B, which is located in [name of
county], Pennsylvania.
Around [year] Political SubdivisionB purchased a parcel of property known as D
(the `"Property"'- for e purpose of particular purpose]. Political Subdivision B now
desires to sell the Property and purcNse a different property to be used for a Political
Subdivision B E and F.
An appraisal of the Property that was performed for Political Subdivision B in
ear determined the value of the Property to be amount]. Although Political
ub ivision B advertised for sealed b, ds for the Properly on [number] occasions, the
only bid received was well below the Property's appraised value and was rejecteby
the Political Subdivision B [governing body).
Individual C is interested in purchasing the Property, which Political Subdivision
B might attempt to sell at a publicly advertise auction held at the Political Subdivision B
building.
Based upon the above submitted facts, the question that is presented is whether
the Ethics Act would impose prohibitions or restrictions upon Individual C with regard to
purchasing the Property from Political Subdivision B.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
eEthic—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
Confidential Advice, 19-538
Augustl9,2019
Page 2
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 Political Subdivision B A, Individual C 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.
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 bock would be unable to take any action on a
matter before hecause 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
od of a political subdivision, where one member has
a ab%ained from voting as a result of a conflict of interest and
the remaining two members of the governing body have cast
opposing voles, 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 priva e
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
Confidential Advice, 19-538
A—Uglu—sf Tg-,72 019
Page 3
other group which includes the p' lic 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.
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 b holdin 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 particular result,
Juliante, Order 809. Subject to certain statutory exceptions, in each instance of a voting
con is Section 11036) 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.
Section 1103(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 p9blic 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. § 11 03(f),
The term "contract" is defined in the Ethics Act as follows:
§ 1102. Definitions
Confidential Advice, 19-538
August 19, 19
Page 4
"Contract." An agreement or arrangement for the
acquisition, use or disposal by the Commonwealth or a
politica I subdivision of consulting or other services or of
supplies, 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.
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 the 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 a% above provisions of the Ethics Act to the instant matter, you are
011�ing the
advised as o ows.
An agreement or arrangement whereby Individual C would purchase the Property
from Political Subdivision B would constitute a "contract" as that term is defined in the
Ethics Act.
The Ethics Act would not prohibit Individual C from purchasing the Property from
Political Subdivision B subiect to the conditions that: (1) he would not use the authority
of his public position as a Political Subdivision B A, or confidential information accessed
or received as a result of being in his public position, to further his urchase of the
Property
from Political Subdivision B in contravention of Section 1103 a) of the Ethics
Act.,nd (2) the restrictions and requirements of Section 11 03(f) of the rthics Act would
be observed as to any contract between Individual C and Political Subdivision B for the
purchase of the Property. (See, Kistler v. State Ethics Commission, 610 Pa. 516, 22
A.3d 223 (2011), regarding the requirements for an "open and publiE—Orccess,")
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
inteyetation of the Ethics Act. Specifically not addressed herein is the applicability of
the G.
Conclusion: Based upon the Submitted facts that: (1) Individual C is an A for
Political division B, which is located in [name of county], Pennsylvania; (2) around
[gar], Political Subdivision B urchased a parcel of propertyKnown as D (the
ropert ") for the purpose of [particular purpose]; (3) oflticaSubdivision B now
desires ro sell the Property and purchase a diweren property to be used for a Political
Subdivision B E and F; (4) an appraisal of the Property that was erformed for Political
Subdivision B in [year] determined the value of the Property to be amount]; (5) although
Political Subdivision B advertised for sealed bids for the Property on [number]
occasions, the only bid received was well below the ProDertv's appraised value and was
rejected by the Political Subdivision B [governing body~]; and (6) Individual C is
Confidential Advice, 19-538
August ,
Page 5
interested in purchasing the Property, which Political Subdivision B might attempt to sell
at a publicly advertised auction held at the Political Subdivision B building, you are
advised as hollows.
As a Political Subdivision B A, Individual C is a public official subject to the
provisions of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. §
1101 et se . An agreement or arrangement whereby Individual C would purchase the
ProperTy7rom Political Subdivision B would constitute a "contract' as that term is
defined in the Ethics Act. The Ethics Act would not prohibit Individual C from
purchasing the Property from Political Subdivision B subject to the conditions that:. (1)
he would not use the authority of his public position as a Political Subdivision B A, or
confidential information accessed or received as a result of being in his public position,
to further his purchase of the Property from Political Subdivision Bin contravention of
Section 1103(of the Ethics Act; and (2) the restrictions and requirements of Section
1103(f) of the thics Act would be observed as to any contract between Individual C
and Political Subdivision B for the purchase of the Property.
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 of this
Advice pursuant to 51 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 (717-787 0806). Failure to
file such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal.
Sinc ely,
Robin M. Hittie
Chief Counsel