HomeMy WebLinkAbout19-542 ConfidentialPHONE: 717-783-1610
TOLL FLEE: 1-800-932-0936
To the Requester:
STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL
September 20, 2019
FACSIMILE: 717-787-0806
WEBSITE: wwwothics.pa.go
19-542
This responds to your letter dated August 9, 2019, received August 21, 2019, by
which you re uested a confidential advisory from the Pennsylvania State Ethics
Commission ("Commission").
Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65
PT.C-S. § 1101 et seq., would impose prohibitions or restrictions upon an individual
serving as an A of tfie13 of the C with regard to participating in discussions or votes of
the C pertaining to the al;pointment of 8 as the C E and the approval and payment o
invoices from D, wher the individual is employed as the [title of position] of the F;
(2) the F will be purchasing the G H and incorporating it into the F's regular operations'
(3).D currently serves as the I for the G H; and (4) in order to complete various G H
projects currently underway, the F will likely retain the services of D for an undetermined
period of time after purchasing the G H.
Facts: You request an advisory from the Commission on behalf of [name of
ind—widual] (the "Individual"). You have submitted facts, the material portion of which
may be fairly summarized as follows.
The Individual is an A of the B of the C, which provides J to certain areas, The
Individual is also employed as the [title of position] of the F, which provides K in various
parts of two counties.
The F recently reached an agreement with the G to purchase the G's H. Upon
completing the purchase, the F will incorporate the G H into the F's regular operations.
D currently serves as the appointed E for the C. D serves at the will of the C B.
D also currently serves as the appointed I for the G H. In order to complete
various G H projects currently underway, the F will likely retain the services of D for an
undetermined period of time after purchasing the G H.
You state that the Individual Would not receive any private pecuniary benefit in
connection with the utilization of D to provide services related to F-G H or in
connection with the appointment of D to serve as the C E.
Confidential Advice 19-542
September 21r, MM
Page 2
Based upon the above submitted facts, you ask whether the Ethics Act would
rewire the Individual to recuse himself from participating in discussions and votes of the
C pertaining to the appointment of D as the C E and the approval and payment of
invoices from D while the F Would be utilizing D for specific projects in relation to the F-
G H.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
the Efhics -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 en age in an
independent investigation of the facts, nor does it speculate as to facts thathave 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 onlyaffords a
defense to the extent the requester has truthfully disclosed all of the material facts.
As an A of the C B, the Individual 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 dischar e of his official duties would be
required to vote on a matterlhat 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
hen such members shall be
permitted to vote if disclosures are made as otherwise
Erovided herein. In the case of a three -member governing
ody of a political subdivision where one member has
abstained from voting as a result of a conflict of interest and
the remaining twomembers of the governing body have cast
opposing votes, the
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.
Confidential Advice 19-542
September 2T, Mb
Page 3
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 holdinpublic 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 official or public
employee, a member of his immediatefamilyor 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 compan
joint t 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 erson's
immediate family is a director, officer, owner, employee or
has a financial interest.
65 Pa.G.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 �uthority of public office/employment or confidential
information received by holdingg 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. Tire 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
conflict, Section 1103 of the Ethics Act would require the public official/public
employee to abstain an 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 &3d 223 (2011), in order to violate Section 1103(a) of tfie
Ethics Act, public official/public employee:
Confidential Advice 19-542
September 2rMM
Page 4
... must act in such a way as to put his office/public position]
to the purpose, of obtaining for hims3 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, su ra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics
- U r It
Act, a pffiliTofficial/public employee must be consciously aware of a private pecuniary
benefit for himself, 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.
Under the submitted facts, there is no basis to conclude that D is a business with
which the Individual is associated. Therefore, you are advised that the Individual Would
not have a conflict of interest and would not violate Section 1103(a) of the Ethics Act by
participating in discussion's) do r vote(s) of the C B pertaining to the appointment of D as
the C F and the approval an payment of invoices from D while the would be utilizing
D for specific projects in relation to the F-G H unless: (1) he would be consciously
aware of a private pecuniary benefit for himself, a member of his immediate familv, or a
business with which he or a member of his immediate family is associated; (2) his
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, the Individual 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.
Add itionally, 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 2er 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
interpretation of the Ethics Act. Specifically not addressed herein is the applicability of
the L.
Conclusion: Based upon the submitted facts that: (1) [name of individual(the
"Individual" is an A of the B of the C, which provides J to certain are 1! the
Individual is also empkgd as the [title of position]of the F, which provides K in various
parts of two counties; � ) the F recently reached an agreement with G to purchase the
G's H, (4) upon competing the purchase, the F will incorporate the G H into the F's
regular operations; (5) D currently serves as the appointed E for the C; (6) D serves at
the will of the CB; (71 D also currently serves as the appointed I for the G H; (8) in order
to complete various G H projects currently underway, the F will likely retain the services
of D for an undetermined period of time after purchasing the G H; and (9). the Individual
would not receive any private pecuniary benefit in connection with the utilization of D to
provide services related to the F-G H or in connection with the appointment of D to
serve as the C E, you are advised as follows.
As an A of the C B, the Individual is a public official subject to the provisions of
the Public Official and Employee Ethics Act ("Ethics Act"), 65 -pa,C.S. § 1101 eft se
Under the submitted facts, there is no basis to conclude that D is a business withWn lc�
the Individual is associated. Therefore, you are advised that the Individual would not
have a conflict of interest and would not violate Section 1103(a) of the Ethics Act by
Confidential Advice 19-542
September ,
Page 5
participating in discussions} ar vote(s) of the C B pertaining to the appointment of D as
the C `E and the approval and payment of invoices from D while the F would be utilizing
D for specific projects in relation to the F-G H unless: (1) he would be consciously
aware of a private pecuniary benefit for himself, a member of his immediate family, or a
business with which he or a member of his immediate family is associated; (2) his
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. § 110, would be applicable.
In each instance of a conflict of interest, the Individual would be required to
abstain from participation, which would include voting unless one of the statutory
exceptions of Section 1103 `) of the Ethics Act would be applicable. Additionally, the
disclosure requireof ection 11030) of the Ethics Act would have to be sati ments sfied
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
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 actue
received at the Commission within thirty(3) days of the date o
Advice pursuant to 51 Pa, Code § f3.2(h). Theappeal may be
received at the Commission by hand delivery, United States mail,
delivery service, or by FAX transmission (71'7-787-0806 Failure to
file such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal.
Sincerely,
4
Robin M. Hittie
Chief Counsel