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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
October 14, 2020
To the Requester:
Scott E. Avolio, Esquire
Avolio Law Group, LLC
20-537
Dear Attorney Avolio:
This responds to your letter dated August 26, 2020, by which you requested an
Issue:
Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon an individual
serving as a Member and Chairman of the Board of the Municipal Authority of
with regard to participating in vote(s) of the
Municipal Authority Board pertaining to projects or other matters of/before the Municipal
Authority if his wife would become either a subcontractor to or a part-time employee of
m.
Facts: You request
an advisory from the Commission on his behalf. You have submitted facts, the material
portion of which may be fairly summarized as follows.
Mr. Roadman is a Member and Chairman of the Municipal Authority Board. The
Municipal Authority provides drinking water and wastewater services to customers in
Allegheny County, Armstrong County, Fayette County, Indiana County, and
Westmoreland County.
Gibson-is the
firm. The Firm serves as the engineer for various political subdivisions in Pennsylvania
and maintains offices in multiple counties in Pennsylvania, including an office in Fayette
-Roadman -, will be
retiring from her employment as the Executive Director of the National Road Heritage
Corridor in November 2020. The Firm would like to utilize Ms. Holdorf-Roadman to
increase business relations in Fayette County and Washington County and consult on
various projects/business developments handled by the Fayette County Firm Office and
the Washington County Firm Office.
Avolio, 20-537
October 14, 2020
Page 2
Ms. Holdorf-Roadman has been offered either part-time employment with the Firm
or a subcontractor engagement with the Firm. As a part-time Firm employee or as a
subcontractor to the Firm, Ms. Holdorf-Roadman would be compensated at a fixed wage
of $30 per hour for no more than twenty hours per week, and she would not be eligible
for a commission or performance-related bonuses. The compensation paid to Ms.
Holdorf-Roadman would not be affected by services that the Firm would perform for the
Municipal Authority.
The question presented by your advisory request is whether the Ethics Act would
impose prohibitions or restrictions upon Mr. Roadman as a Member and Chairman of the
Board of the Municipal Authority with regard to participating in vote(s) of the Municipal
Authority Board pertaining to projects or other matters of/before the Municipal Authority if
his wife would become either a subcontractor to or a part-time employee of the Firm. You
suggest that the answer to the question may depend upon whether such projects or other
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 Member and Chairman of the Municipal Authority Board, Mr. Roadman is 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
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
Avolio, 20-537
October 14, 2020
Page 3
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.
"Immediate family." A parent, spouse, child, brother
or sister.
"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
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
Avolio, 20-537
October 14, 2020
Page 4
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:
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.
-
as that term is defined in the Ethics Act.
If Ms. Holdorf-Roadman would become a subcontractor to the Firm, the Firm would
not be considered a business with which Ms. Holdorf-Roadman is associated, as there is
no basis in the submitted facts to conclude that Ms. Holdorf-
unless there
would be a basis for a conflict of interest such as a private pecuniary benefit to Mr.
Roadman, a member of his immediate family such as his wife, or a business with which
he or a member of his immediate family is associated, Mr. Roadman would not have a
conflict of interest under Section 1103(a) of the Ethics Act as to vote(s) of the Municipal
Authority Board pertaining to projects or other matters of or before the Municipal Authority.
If Ms. Holdorf-Roadman would become a part-time employee of the Firm, the Firm
would be a business with which Ms. Holdorf-Roadman would be considered to be
associated in her capacity as an employee. Under such circumstances, subject to the
Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102, pursuant to Section 1103(a) of the
Ethics Act, Mr. Roadman would have a conflict of interest as to action(s) that would
financially impact the Firm, including but not limited to vote(s) of the Municipal Authority
Board as to whether the Firm should be reappointed
engineering firm, assignment of work to the Firm, payment of Firm invoice(s), or review
or approval of work performed by the Firm. Where a conflict of interest would arise, it
would exist as a result of the employer-employee relationship between Ms. Holdorf-
Roadman and the Firm; it would not depend upon whether Ms. Holdorf-Roadman would
be involved with the particular project or matter or the geographical location of the work.
In each instance of a conflict of interest, Mr. Roadman would be required to abstain
from participation, which would include voting unless one of the statutory exceptions of
Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure
requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event
of a voting conflict.
Avolio, 20-537
October 14, 2020
Page 5
If Ms. Holdorf-Roadman would become a part-time employee of the Firm, you
might wish to seek further advice from the Commission regarding the restrictions of
Section 1103(f) of the Ethics Act, 65 Pa.C.S. § 1103(f), pertaining to contracting.
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 Municipality Authorities Act.
Conclusion: Based upon the submitted facts that: (1) Mr.
drinking water and wastewater services to customers in Allegheny County, Armstrong
County, Fayette County, Indiana County, and Westmoreland County; (3) Gibson-Thomas
as the engineer for various political subdivisions in Pennsylvania and maintains offices in
--ill
be retiring from her employment as the Executive Director of the National Road Heritage
Corridor in November 2020; (6) the Firm would like to utilize Ms. Holdorf-Roadman to
increase business relations in Fayette County and Washington County and consult on
various projects/business developments handled by the Fayette County Firm Office and
the Washington County Firm Office; (7) Ms. Holdorf-Roadman has been offered either
part-time employment with the Firm or a subcontractor engagement with the Firm; (8) as
a part-time Firm employee or as a subcontractor to the Firm, Ms. Holdorf-Roadman would
be compensated at a fixed wage of $30 per hour for no more than twenty hours per week,
and she would not be eligible for a commission or performance-related bonuses; and (9)
the compensation paid to Ms. Holdorf-Roadman would not be affected by services that
the Firm would perform for the Municipal Authority, you are advised as follows.
As a Member and Chairman of the Municipal Authority Board, Mr. Roadman is a
public official subject to the provisions of the Public Official and Employee Ethics Act
65 Pa.C.S. § 1101 et seq. -Roadman, is
If Ms. Holdorf-Roadman would become a subcontractor to the Firm, the Firm would
not be considered a business with which Ms. Holdorf-Roadman is associated, as there is
no basis in the submitted facts to conclude that Ms. Holdorf-
unless there
would be a basis for a conflict of interest such as a private pecuniary benefit to Mr.
Roadman, a member of his immediate family such as his wife, or a business with which
he or a member of his immediate family is associated, Mr. Roadman would not have a
conflict of interest under Section 1103(a) of the Ethics Act as to vote(s) of the Municipal
Authority Board pertaining to projects or other matters of or before the Municipal Authority.
If Ms. Holdorf-Roadman would become a part-time employee of the Firm, the Firm
would be a business with which Ms. Holdorf-Roadman would be considered to be
associated in her capacity as an employee. Under such circumstances, subject to the
Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102, pursuant to Section 1103(a) of the
Ethics Act, Mr. Roadman would have a conflict of interest as to action(s) that would
financially impact the Firm, including but not limited to vote(s) of the Municipal Authority
Board as to whether
engineering firm, assignment of work to the Firm, payment of Firm invoice(s), or review
or approval of work performed by the Firm. Where a conflict of interest would arise, it
Avolio, 20-537
October 14, 2020
Page 6
would exist as a result of the employer-employee relationship between Ms. Holdorf-
Roadman and the Firm; it would not depend upon whether Ms. Holdorf-Roadman would
be involved with the particular project or matter or the geographical location of the work.
In each instance of a conflict of interest, Mr. Roadman would be required to abstain
from participation, which would include voting unless one of the statutory exceptions of
Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure
requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event
of a voting conflict.
If Ms. Holdorf-Roadman would become a part-time employee of the Firm, you
might wish to seek further advice from the Commission regarding the restrictions of
Section 1103(f) of the Ethics Act, 65 Pa.C.S. § 1103(f), pertaining to contracting.
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