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STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL
December 19, 2019
To the Requester:
Mr. Charles M. Means, Esquire
Goehring Rutter & Boehm
Dear Mr. Means:
FACSIMILE: 717-787-0806
WEBSITE: www.ethir-S.pa.gov
19-553
This responds to your letter dated November 1, 2019 (postmarked November 12,
2019, received November 15, 2019), by which you requested an advisory from the
Pennsylvania State Ethics Commission ('Commission").
Issue: Whether, pursuant to Section 1103(a) of the Public Official and Employee
ET ics Act ("Ethics Act"), 65 Pa.C.S. § 1103(a), an individual serving as a Member of the
Board of Commissioners of Collier Township ("Township') would have a conflict of
interest with regard to participating in negotiations, deliberations, votes, or other actions
of the Township BoardofCommissioners with regard to the potential dissolution of the
Collier Township Municipal Authority ("Municipal Authority"), where: (1) the Municipal
Authority Board consists of five Members who are appointed by the Township for
staggered five-year terms; (2) Members of the Municipal Authority Board are
compensated $100.00 per month for their service; (3) the individual is currently serving
as a Member of the Municipal Authority Board; (4) the individual's term as a Member of
the Municipal Authority Board will expire in January 2020; and (5) the terms of the other
four Members of the Municipal Authority Board are set to expire over the course of the
following four years.
Facts: You have been authorized by Richard Ruffennach ("Mr.
Ruffennach") to request an advisory from the Commission on his behalf. You have
submitted facts that may be fairly summarized as follows.
The Township created the Municipal Authority pursuant to the Municipality
Authorities Act, 53 Pa.C.S. § 5601 et se The Municipal Authority Board consists of
five Members who are appointed —by —the Township Board of Commissioners for
staggered five-year terms. members offffff the Municipal Authority Board are compensated
$100.00 per month for their service.
Mr. Ruffennach is a Member of the Township Board of Commissioners. Mr.
Ruffennach is also a Member of the Municipal Authority Board. Mr. Ruffennach's term
as a Municipal Authority Board Member will expire in January 2020. The terms of the
other four Municipal Authority Board Members are set to expire over the course of the
following four years.
The Township Board of Commissioners might choose to consider or act with
respect to the issue of whether the Township should convey certain Township -owned
sanitary sewers to the Municipal Authority. The Township might also choose to
Means, 19-553
Dece ber 19, 2019
Page 2
consider or act with respect to the issue of whether the Township should dissolve the
Municipal Authority and take over ownership of the Municipal Authority's sanitary
sewers. Action taken to dissolve the Municipal Authority would terminate the Municipal
Authority Board as well as the compensation paid to its Members.
Based upon the above submitted facts, you pose the following questions:
(1) Whether Mr. Ruffennach would have a conflict of interest with regard to
pparticipating in negotiations, deliberations, votes, or other actions of the
Township Board of Commissioners pertaining to a potential dissolution of
the Municipal Authority;
(2) Whether the class/subclass exclusion set forth within the Ethics Act's
definition of "conflict" or "conflict of interest," 65 Pa.C.S § 1102, would be
applicable to Mr. Ruffennach such that he would not be prohibited from
participatin in negotiations, deliberations, votes, or other actions of the
Township Board of Commissioners pertaining to a potential dissolution of
the Municipal Authority; and
(3) Whether Mr. Ruffennach would have a conflict of interest with regard to
participating in negotiations, deliberations, votes, or other actions of the
Township Board of Commissioners pertaining to a potential dissolution of
the Municipal Authority since action taken by the Township Board of
Commissioners could be challenged in litigation by the Municipal
Authority.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11)
of the 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
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.
It is further initially noted that, pursuant to the same aforesaid Sections of the
Ethics Act, an opinion/advice may be given only as to prospective (future) conduct. To
the extent that your inquiry relates to conduct that has already occurred, such past
conduct may not be addressed in the context of an advisory opinion. However, to the
extent your inquiry relates to future conduct, your inquiry may and shall be addressed.
As a Member of the Township Board of Commissioners and as a Member of the
Municipal Authority Board, Mr. Ruffennach 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
Means, 19-553
Dec —ember 19, 2019
Page 3
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 two 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
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.
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 by holding such a public position for the private pecuniary benefit
of the public officiallpublic 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.
Means, 19-553
Dece ber 19, 2019
Page 4
Juliante, Order 809. Subject to certain statutory exceptions, in each instance of a voting
co�iict, 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 Pennsyylvania Supreme Court's decision in Kistler v. State Ethics
Commission, 610 Pa. 516, 22 A.3d 223 (2011), in order to violate Section 1103(a) o t e
Ethics Act, a public official/public 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
c�,apublic 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.
A conflict of interest would not exist to the extent the "de minimis exclusion"
and/or the "class/subclass exclusion" set forth within the Ethics Act's definition of the
term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, would be applicable.
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; Schweinsbur , Order 900.
The determination of whether the deminimis exclusion applies in a given instance is
fact specific and is made on a case -by -case basis. See, Sero ian v. State Ethics
Commission, 20 A.3d 534 (Pa. Cmwlth. 2011). You are cat ed that the economic
impact o an n ividual's conduct may aggregate over time, rather than be limited to a
particular increment of time such as a month or year. Confidential Opinion, 05-001;
Corey/Mann, Opinion 13-006; Corey/Mann, Opinion 14-003.
In order for the class/subclass exclusion to app/y, two criteria must be met: (1)
the affected public official/public employee, immediate family member, or business with
which the public official/public employee or immediate family member is associated
must be a member of a class consisting of the general public or a true subclass
consisting of more than one member; and (2) the public official/public employee,
immediate family member, or business with which the public official/public employee or
immediate family member is associated must be affected "to the same degree" (in no
way differently) than the other members of the class/subclass. 65 Pa.C.S. § 1102; see,
Kablack, Opinion 02-003; Rubenstein, Opinion 01-007. The first criterion of the
exclusion is satisfied where the bers of the proposed subclass are similarly
situated as the result of relevant shared characteristics. The second criterion of the
exclusion is satisfied where the individual/business in question and the other members
of the classlsubclass are reasonably affected to the same degree by the proposed
action. Kablack, supra.
Having established the above general principles, you are advised as follows.
• Given the little time remaining in Mr; Ruffennach's current term as a Municipal
Authority Board Member, the de minimis exclusion would be applicable and Mr.
Ruffennach would not have a conflict of interest in matters pertaining to a
potential dissolution of the Municipal Authority unless Mr. Ruffennach would have
Means, 19-553
member 19, 2019
Page 5
an actual or reasonable expectation of being reappointed to another term as a
Municipal Authority Board Member.
If Mr. Ruffennach would have an actual or reasonable expectation of being
reappointed to another term as a Municipal Authority Board Member, the de
minimis exclusion would not be applicable, and Mr. Ruffennach generally would
have a conflict of interest with regard to participating in negotiation(s),
deliberation(s), vote(s), or other action(s) of the Township Board of
Commissioners pertaining to a potential dissolution of the Municipal Authority.
The class/subclass exclusion would not be applicable because Members of the
Municipal Authority Board serve staggered terms, and Mr. Ruffennach would not
be affected "to the same degree" as o{her Municipal Authority Board Members.
Actions of Mr. Ruffennach in furtherance of the dissolution of the Municipal
Authority would not run afoul of Section 1103(a) of the Ethics Act as such actions
would be to the financial detriment of Mr. Ruffennach.
• The potential for litigation by the Municipal Authority against the Township Board
of Commissioners would not impact this analysis unless Mr. Ruffennach would
be affected financially.
In each instance of a conflict of interest, Mr. Ruffennach 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 other than the Ethics Act has not been considered in that they do not involve an
interetation of the Ethics Act. Specifically not addressed herein is the applicability of
rp
the First Class Township Code or the Municipality Authorities Act.
Conclusion: Based upon the submitted facts that: (1) Collier Township
("Township' created the Collier Township Municipal Authority ("Municipal Authority')
pursuant to the Municipality Authorities Act, 53 Pa.C.S. & 5601 et s_qq , (2) the Munici al
Authority Board consists of five Members who are appointed bTthe Township BoarZ
Commissioners for sta gered five-year terms; 3) Members of the Municipal Authority
Board are compensated $100.00 per month for their service; (4) Richard Ruffennach
{"Mr. Ruffennach") is a Member of the Township Board of Commissioners; (5) Mr.
Ruffennach is also a Member of the Municipal Authority Board; (6) Mr. Ruffennach's
term as a Municipal Authority Board Member will expire in January 2020; (7) the terms
of the other four Municipal Authority Board Members are set to expire over the course of
the following four years; (8) the Townshi Board of Commissioners might choose to
consider or act with respect to the issue ofwhetherthe Township should convey certain
Township -owned sanitary sewers to the Municipal Authority; (9) the Township might
also choose to consider or act with respect to the issue of whether the Township should
dissolve the Municipal Authority and take over ownership of the Municipal Authority's
sanitary sewers; and (10)) action taken to dissolve the Municipal Authority would
terminate the Municipal Authority Board as well as the compensation paid to its
Members, you are advised as follows.
Given the little time remaining in Mr. Ruffennach's current term as a Municipal
Authority Board Member, the de minimis exclusion would be applicable and Mr.
Ruffennach would not have a conflict of interest in matters pertaining to a
potential dissolution of the Municipal Authority unless Mr. Ruffennach would have
an actual or reasonable expectation of being reappointed to another term as a
Municipal Authority Board Member.
Means, 19-553
member 19, 2019
Page 6
If Mr. Ruffennach would have an actual or reasonable expectation of being
reappointed to another term as a Municipal Authority Board Member, the de
minimis exclusion would not be applicable, and Mr. Ruffennach generally would
have a conflict of interest with regard to participating in negotiation(s),
deliberation(s), vote(s), or other action(s) of the Township Board of
Commissioners pertaining to a potential dissolution of the Municipal Authority.
The class/subclass exclusion would not be applicable because Members of the
Municipal Authority Board serve staggered terms, and Mr. Ruffennach would not
be affected "to the same degree" as other Municipal Authority Board Members.
Actions of Mr. Ruffennach in furtherance of the dissolution of the Municipal
Authority would not run afoul of Section 1103(a) of the Ethics Act as such actions
would be to the financial detriment of Mr. Ruffennach.
• The potential for litigation by the Municipal Authority against the Township Board
of Commissioners would not impact this analysis unless Mr. Ruffennach would
be affected financially.
In each instance of a conflict of interest, Mr. Ruffennach 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
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 actually
received at the Commission within thirty (30) days of the dated is
Advice pursuant to 59 Pa. Code § 73.2(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,
PobinMM Hittie
Chief Counsel