HomeMy WebLinkAbout20-515 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
ADVICE OF COUNSEL
March 11, 2020
FACSIMILE: 717-787-0806
WEBSITE: www.ethics.pa.gov
20-515
This responds to your letters received February 11, 2020, and February 18,
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
�C-S, 5 1101 et seq., would impose prohibitions or restrictions upon an A for Political
Subdivision B, who in a private capacity is employed part-time with a C which owns a D
that has a contract with Political Subdivision B to perform services related to a Political
Subdivision B E, with regard to: (1) participating in votes of the Political Subdivision B
[governing body] pertaining to Fs for the E; (2) participating in votes of the Political
Subdivision B lgoverning body] pertainingto new contracts with the D or other Gs
owned by the C; or (3) attending executive sessions of the Political Subdivision B
[governing body] that would involve discussions, deliberations, informational items, or
other actions/matters pertaining to the C.
Facts: You request a confidential advisory from the Commission based upon
suGmitted facts that may be fairly summarized as follows.
You are an A for Political Subdivision B. In a private capacity, you are employed
part-time with a C that owns a D and other Gs.
The D has a contract with Political Subdivision B to perform services related to a
Political Subdivision B E. You state that you would not receive a direct or indirect
financial benefit from any additional work that the D might realize as a result of the
approval of Fs for the E.
Based upon the above submitted facts, you pose the following questions:
(1) Whether you would be permitted to participate in votes of the Political
Subdivision B [governing body] pertaining to Fs for the E;
(2) Whether you would be permitted to participate in votes of the Political
Subdivision B [governing body] pertaining to new contracts with the D or
other Gs ownedbythe C; and
(3) Whether you would be permitted to attend executive sessions of the
Political Subdivision B [governing body] that would involve discussions,
deliberations, informational items, or other actions/matters pertaining to
the C.
Confidential Advice, 20-515
March
Page 2
Discussion: It is initially noted 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 disclosed all of the material facts.
As an A for Political Subdivision B, you are 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
Confidential Advice, 20-515
March
Page 3
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.
"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 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 ict, 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 11 03(a) of the
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, 20-515
March
Page 4
Kistler, supra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics
c� public official/public 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.
Having established the above general principles, your specific questions shall
now be addressed.
In response to your first and second questions, you are advised as follows.
The C is a business with which you are associated in your capacity as an
emplo ee. The submitted fact that the D (or other G) is owned by the C would not in
and of itself make the D (or other G) a business with which you are associated. Cf.,
[cite]. Therefore, you are advised that if there would be a basis for a conflict of interest
such as a private pecuniary benefit to you, a member of our immediate family, or a
business with which you or a member of your immediate family is associated such as
the C, you would have a conflict of interest under Section 1103(a) of the Ethics Act with
regard to participating in votes of the Political Subdivision BNs)
overning body pertaining
to: (1) Fs for the E; or (2) new contract(s) with the D or other owned by t e C.
In response to your third question, you are advised as follows.
The Ethics Act would not prohibit you from attending executive sessions of the
Political Subdivision B [governin.9 body] that would involve discussions, deliberations,
informational items, or other actions/matters pertaining to the C. However, you are
advised that you would violate Section 1103(a) of the Ethics Act if you would use the
authority of your public position as an A, or confidential information accessed or
received as a result of being in your public position, for a prohibited private pecuniary
benefit to you, a member of your immediate family, or a business with which you or a
member of your immediate family is associated such as the C.
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
interpretation of the Ethics Act. Specifically not addressed herein is the applicability of
the H.
Conclusion; Based upon the submitted facts that: (1) you are an A for Political
SuBdivisioF-B; (2) in a private capacity, you are employed part-time with a C that owns a
D and other Gs; (3) the D has a contract with Political Subdivision B to perform services
related to a Political Subdivision B E; and (4) you would not receive a direct or indirect
financial benefit from any additional work that the D might realize as a result of the
approval of Fs for the E, you are advised as follows.
As an A for Political Subdivision B, you are a public official sub'ect to the
provisions of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. §
1101 et sJ. The C is a business with which you are associated in your capacity as an
employee. The submitted fact that the D (or other G) is owned by the C would not in
and of itself make the D (or other G) a business with which you are associated.
Therefore, you are advised that if there would be a basis for a conflict of interest such
as a private pecuniary benefit to you, a member of your immediate family, or a business
with which you or a member of your immediate family is associated such as the C, you
would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to
participating in votes of the Political Subdivision B [governing body] pertaining to: (1) Fs
for the E; or (2) new contract(s) with the D or other (s) owned by the C.
Confidential Advice, 20-515
March
Page 5
The Ethics Act would not prohibit you from attending executive sessions of the
Political Subdivision B [governing body] that would involve discussions, deliberations,
informational items, or other actions/matters pertaining to the C. However, you are
advised that you would violate Section 1103(a) of the Ethics Act if you would use the
authority of your public position as an A, or confidential information accessed or
received as a result of being in your public position, for a prohibited private pecuniary
benefit to you, a member of your immediate family, or a business with which you or a
member of your immediate family is associated such as the C.
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 writingg and must be actual/�
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.
Sincerely,
� M. !
Robin M. Hittie
Chief Counsel