HomeMy WebLinkAbout20-532 Hollywood
PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806
TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL
August 3, 2020
To the Requester:
Andrew J. Hollywood
20-532
Dear Andrew J. Hollywood:
This responds to your undated letter received July 6, 2020, by which you requested
Issue:
Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon a borough council
member, who in a private capacity is employed as a systems administrator with a
corporation that owns a number of subsidiaries, with regard to voting to approve: (1) the
placement of legal/public notices in a newspaper published by a subsidiary owned by the
corporation; (2) the payment of monthly invoices for telephone/cable/internet services
provided to the borough by subsidiaries owned by the corporation; or (3) the payment of
invoices for occasional construction or IT services provided to the borough by subsidiaries
owned by the corporation.
Facts: You request an advisory from the Commission based upon submitted facts
that may be fairly summarized as follows.
You are a In a private
capacity, you are employed with a corporation named Pencor Services, Inc.
as a systems administrator. Pencor owns a number of subsidiaries, including Palmerton
Telephone Company, The Times News, Times News Printing, Pencor Construction,
Pencor Hydraulic Hose and Fittings, Pencor Electric, PenTeleData, and Blue Ridge
Cable.
The Borough utilizes subsidiaries owned by Pencor for the provision of ongoing
telephone/cable/internet services and occasional construction and IT services. The
Borough also places legal/public notices in the local newspaper published by The Times
News.
Each month the Borough approves the payment of invoices, including monthly
invoices for the telephone/cable/internet services provided to the Borough by subsidiaries
owned by Pencor.
Hollywood, 20-532
August 3, 2020
Page 2
Based upon the above submitted facts, the following questions are presented by
your advisory request:
(1) Whether you would be required to abstain from votes to approve the
placement of Borough legal/public notices in the local newspaper published
by The Times News;
(2) Whether you would be required to abstain from monthly votes to approve
the payment of monthly invoices for telephone/cable/internet services
provided to the Borough by subsidiaries owned by Pencor;
(3) Whether you would be required to abstain from votes to approve the
payment of non-monthly invoices for occasional construction or IT services
provided to the Borough by subsidiaries owned by Pencor; and
(4) If you would be required to abstain from monthly votes to approve the
payment of monthly invoices for telephone/cable/internet services provided
to the Borough by subsidiaries owned by Pencor, would you be permitted
at the beginning of the year by which you would
abstain from all of those monthly votes as a whole rather than abstaining
from each monthly vote on an individual basis.
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.
As a Borough Council Member, you are a public official subject to the provisions
of the Ethics Act.
Sections 1103(a) and 1103(j) 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.
(j) 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
Hollywood, 20-532
August 3, 2020
Page 3
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), (j).
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.
"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.
S
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
Hollywood, 20-532
August 3, 2020
Page 4
809. Subject to certain statutory exceptions, in each instance of a voting conflict, Section
1103(j) 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.
Kistler v. State Ethics
Commission, 610 Pa. 516, 22 A.3d 223 (2011), in order to violate Section 1103(a) of the
Ethics Act, a public official/public employee:
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
benefit for himself, his family, or his business, and then must take action in the form of
Id., 610 Pa. at 528, 22 A.3d at 231.
In applying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
Pencor is a business with which you are associated in your capacity as an
employee. The submitted fact that an entitysuch as Palmerton Telephone Company,
The Times News, Times News Printing, Pencor Construction, Pencor Hydraulic Hose and
Fittings, Pencor Electric, PenTeleData, or Blue Ridge Cableis a subsidiary of Pencor,
Subsidiary a business with which you are associated. Cf., Confidential Opinion, 92-003
at 6 (regarding parent and subsidiary corporations); Pertile, Advice 10-610. Therefore,
you are advised that unless 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 Pencor, you would
not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting
to approve: (1) the placement of Borough legal/public notices in the local newspaper
published by The Times News, which is a Pencor Subsidiary; (2) the payment of monthly
invoices for telephone/cable/internet services provided to the Borough by Pencor
Subsidiaries; or (3) the payment of non-monthly invoices for occasional construction or IT
services provided to the Borough by Pencor Subsidiaries.
You are further advised that to the extent the payment of such aforesaid monthly
invoices would result in 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 Pencor, you would not have a conflict of interest under Section 1103(a) of the
Ethics Act with regard to voting to approve the payment of a standard monthly
telephone/cable/internet service invoice issued by a Pencor Subsidiary that is pre-fixed,
routine, and uncontested. Pizonka/Rieder/Rittenhouse, Opinion 09-007 (Citing Yezzi,
Order 825 at 58; Krushinski, Order 168; Brooks, Opinion 89-023; Maholick, Opinion 90-
010). However, you would have a conflict of interest under Section 1103(a) of the Ethics
Act with regard to voting to approve the payment of any monthly telephone/cable/internet
service invoice issued by a Pencor Subsidiary that would not meet the aforesaid criteria.
Pizonka/Rieder/Rittenhouse, supra.
You are additionally advised that Section 1103(j) of the Ethics Act does not provide
voting conflicts that may arise on a recurring basis. Pursuant
to Section 1103(j) of the Ethics Act, in each instance of a conflict of interest, you would
be required to abstain from participation, which would include voting unless one of the
Hollywood, 20-532
August 3, 2020
Page 5
statutory exceptions of Section 1103(j) would be applicable. Additionally, you would be
required to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act each
time a voting conflict would arise, such that prior to the vote being taken, you would be
required to publicly announce and disclose the nature of your 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. 65 Pa.C.S. § 1103(j).
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 Borough Code.
Conclusion: Based upon the submitted facts that: (1) you are a Member of
Council for Palmen a private capacity, you are employed
with Pencor Services, Inc.
(3) Pencor owns a number of subsidiaries, including Palmerton Telephone Company, The
Times News, Times News Printing, Pencor Construction, Pencor Hydraulic Hose and
Fittings, Pencor Electric, PenTeleData, and Blue Ridge Cable; (4) the Borough utilizes
subsidiaries owned by Pencor for the provision of ongoing telephone/cable/internet
services and occasional construction and IT services; (5) the Borough also places
legal/public notices in the local newspaper published by The Times News; and (6) each
month the Borough approves the payment of invoices, including monthly invoices for the
telephone/cable/internet services provided to the Borough by subsidiaries owned by
Pencor, you are advised as follows.
As a Borough Council Member, you are a public official subject to the provisions
65 Pa.C.S. § 1101 et seq.
Pencor is a business with which you are associated in your capacity as an employee.
The submitted fact that an entitysuch as Palmerton Telephone Company, The Times
News, Times News Printing, Pencor Construction, Pencor Hydraulic Hose and Fittings,
Pencor Electric, PenTeleData, or Blue Ridge Cableis a subsidiary of Pencor,
hereinafter referr
Subsidiary a business with which you are associated. Therefore, you are advised that
unless 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 Pencor, you would not have a conflict of
interest under Section 1103(a) of the Ethics Act with regard to voting to approve: (1) the
placement of Borough legal/public notices in the local newspaper published by The Times
News, which is a Pencor Subsidiary; (2) the payment of monthly invoices for
telephone/cable/internet services provided to the Borough by Pencor Subsidiaries; or (3)
the payment of non-monthly invoices for occasional construction or IT services provided
to the Borough by Pencor Subsidiaries.
You are further advised that to the extent the payment of such aforesaid monthly
invoices would result in 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 Pencor, you would not have a conflict of interest under Section 1103(a) of the
Ethics Act with regard to voting to approve the payment of a standard monthly
telephone/cable/internet service invoice issued by a Pencor Subsidiary that is pre-fixed,
routine, and uncontested. However, you would have a conflict of interest under Section
1103(a) of the Ethics Act with regard to voting to approve the payment of any monthly
telephone/cable/internet service invoice issued by a Pencor Subsidiary that would not
meet the aforesaid criteria.
You are additionally advised that Section 1103(j) of the Ethics Act (pertaining to
arise on a recurring basis. Pursuant to Section 1103(j) of the Ethics Act, in each instance
Hollywood, 20-532
August 3, 2020
Page 6
of a conflict of interest, you would be required to abstain from participation, which would
include voting unless one of the statutory exceptions of Section 1103(j) would be
applicable. Additionally, you would be required to satisfy the disclosure requirements of
Section 1103(j) of the Ethics Act each time a voting conflict would arise, such that prior to
the vote being taken, you would be required to publicly announce and disclose the nature
of your 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.
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 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,
Robin M. Hittie
Chief Counsel