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To the Requester:
STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL.
March 4, 2020
FACSIMILE: 717-787-0806
WEBSITE: www.ethics.pa.gov
20-512
This responds to your letter dated January 27, 2020, 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
Fra.TS. § 1101 et ssec ., would impose prohibitions or restrictions upon an individual
serving as an A Tor Political Subdivision B, who is both a member of the C of the D
known as E and a volunteer Member of the Board of the C, with regard to participating
in discussions, votes, or other actions of the Political Subdivision B F involving E.
Facts: You have been authorized by Mr. G to request a confidential advisory from
Me Commission on his behalf. You have submitted facts, the material portion of which
may be fairly summarized as follows.
Mr. G be.9an serving as a Political Subdivision B A on [date], and he is currently
the H. The Political Subdivision B F consists of [number] Members.
Mr. G and his wife own an I in a D known as E. E has [number] Js. Mr. G is a
member of the C of E. Mr. G is also a volunteer Member of the Board of the C. You
state that Mr. G's term on the Board of the C will soon expire and that he will not seek
reelection to the Board but will remain a member of the C.
E has one K and an L that is M to N. The O within E is owned by Political
Subdivision B. The P of E is in a Q for the E O and has R with Political Subdivision B to
S that the E O operates properly.
Based upon the above submitted facts, you seek guidance as to whether Mr. G
would have a conflict of interest with regard to participating in discussions, votes, or
other actions of the Political Subdivision B F pertaining to:
(1) The issue of whether the Political Subdivision B F should [take certain
action regarding the E O];
(2) The issue of whether Political Subdivision B should [take certain action
regarding the L]; or
(3) Other matters involving E.
Confidential Advice, 20-512
March
Page 2
Discussion: It is initiallynoted that pursuant to Sections 1107(10) and 1107(11) of
e 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. §§ 11070O0 , (11). An advisory only affords a
defense to the extent the requester has truthfully discllosed all of the material facts.
As a Political Subdivision B A, Mr. G 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
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
Confidential Advice, 20-512
March
Page 3
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.
"Business." Any corporation, partnership, sole
proprietorship, firm, enterprise, franchise, association,
organization, self-employed individual, holding company,
joint 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 person's
immediate family is a director, officer, owner, employee or
has a financial interest.
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 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 officiallpublic 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, conferrin, with others, and lobbying for a particular result.
Juliante, Order 809. Subject to certain statutory exceptions, in each instance of a voting
conict, 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 03(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.
Confidential Advice, 20-512
arc
Page 4
Kistler, supra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics
Act, a public 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; Schweinsburg, Order 900.
In order for the class/subclass exclusion to a ply, two criteria must be met: (1)
the affected public official/public employee, immedia e 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 de ree" (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 members 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 class/subclass are reasonably affected to the same degree by the proposed
action. Kablack, supra.
In ap Iying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
The C is currently a business with which Mr. G is associated in his capacity as a
Member of the Board of the C. However, upon the expiration of Mr. G's term on the
Board of the C, the C would no longer be considered a business with which Mr. G is
associated. This is because membership in the C alone would be insufficient to make
the C a business with which he is associated.
You are advised that Mr. G would have a conflict of interest with regard to
participating in discussion(s), vote(s), or other action(s) of the Political Subdivision B F
pertaining to:
(1) The issue of whether the Political Subdivision B F should [take certain
action regarding the E O];
(2) The issue of whether Political Subdivision B should ]take certain action
regarding the t..]; or
(3) Other matter(s) involving E,
if: (a) he would be consciously aware of a private pecuniary benefit for himself, a
member of his immediate famil or a business with which he or a member of his
immediate family is associated; {6) his action(s) would constitute one or more specific
steps to attain that benefit; and (c) neither the de minimis exclusion nor 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. Cf. Kistler, supra.
Confidential Advice, 20-512
March 4, 2020
Page 5
In each instance of a conflict of interest, Mr. G would be required to abstain from
partici ation, which would include voting unless a voting conflict exception 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 otther 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 T.
Conclusion: Based upon the submitted facts that: (1) Mr. G began serving as an
orPolitical Subdivision B on [date], and he is currently the H; (2) the Political
Subdivision B F consists of [number] Members; (3) Mr. G and his wife own an I in a D
known as E; (4) E has [number' Js; 5) Mr. G is a member of the C of E; (6) Mr. G is
also a volunteer Member of the'3oard of the C; (7) Mr. G's term on the Board of the C
will soon expire, and he will not seek reelection to the Board but will remain a member
of the C; (8) E has one K and an L that is M to N; (9) the O within E is owned by Political
Subdivision B; and (10) the P of E is in a Q for the E O and has R with Political
Subdivision B to S that the E O operates properly, you are advised as follows.
As a Political Subdivision B A, Mr. G is a public official subject to the provisions
of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et seq.
The C is currently a business with which Mr. G is associated in his capacity as a
Member of the Board of the C. However, upon the expiration of Mr. G's term on the
Board of the C, the C would no longer be considered a business with which Mr. G is
associated. This is because membership in the C alone would be insufficient to make
the C a business with which he is associated.
Mr. G would have a conflict of interest with regard to participating in
discussion(s), vote(s), or other action(s) of the Political Subdivision B F pertaining to:
(1) The issue of whether the Political Subdivision B F should [take certain
action regarding the E O];
(2) The issue of whether Political Subdivision B should [take certain action
regarding the L]; or
(3) Other matter(s) involving E,
if: (a) 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; (b) his action(s) would constitute one or more specific
steps to attain that benefit; and (c) neither the de minimis exclusion nor 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.
In each instance of a conflict of interest, Mr. G would be required to abstain from
partici ation, which would include voting unless a voting conflict exception 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.
Confidential Advice, 20-512
March 4, 2020
Page 6
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 writingg and must be actuall
received at the Commission within thirty(30) days of the date of this
Advicepursuant 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.
Sincerely,
W'0�-M ,
Robin M. Hittie
Chief Counsel