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To the Requester:
STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL
February 19, 2021
FACSIMILE: 717-787-0806
WEBSITE: www.ethics.pa.gov
21-507
This responds to your correspondence dated January 21, 2021, by which you
requested a confidential advisory from the Pennsylvania State Ethics Commission
("Commission").
Issue:
Pursuant to the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S.
§ 1101 et seq., as a Township Supervisor, can you participate in official actions of
the Board of Supervisors to approve a land development project which is located
on land/property that is adjacent to property on which you reside and operate a
business?
Brief Answer. YES. As a Township Supervisor, you would not have a conflict of
interest pursuant to Section 1103(a) of the Ethics Act, with regard to participating
in matters before the Township Board of Supervisors, where the submitted facts
do not indicate that the use of your office would financially impact you, a member
of your immediate family, or a business with which you or a member of your
immediate family are associated.
Facts:
You request an advisory from the Commission based upon submitted facts that
may be fairly summarized as follows:
You are a Supervisor for [Township]. [Township] is a Second Class Township,
governed by a [number] Member Board of Supervisors (Board). You seek an advisory
concerning your ability to participate in action(s) of the Board regarding [land
development] that is proposed to occur on property adjoining your property.
Confidential Advice, 21-507
February
Page 2
You reside on [land] with your family. In addition to your family's residences on
the property, this parcel is also [contains improvements]. You and [immediate family] own
this property and jointly operate a [business on the property].
Directly adjoining your property is [a tract of land] that is under agreement with
[developer]. This tract of land is currently occupied by a [commercial business]. On this
[tract of land] [developer] is proposing to construct a [land development]. Your [land]
borders this proposed development on one side and is bordered by [commercial property]
on two sides as well as [residential property] on the last side.
For this development to move forward, [developer] needs two approvals from the
Board of Supervisors. First, they need conditional use approval from the Board to develop
the property with the proposed [land development]. Although the application for this
conditional use approval has yet to be filed, you are already planning not to participate in
the hearing on this application as a Member of the Board of Supervisors; however, you
do plan to participate as a member of the general public. Second, [developer] will also
need a subdivision/land development approval for this project. You are writing to the
State Ethics Commission (Commission) to see whether or not the State Ethics Act would
allow you to participate as a Member of Board of Supervisors in reviewing and/or voting
on the subdivision land development aspects of the project.
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 Township Supervisor, 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
Confidential Advice, 21-507
February
Page 3
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
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.
Confidential Advice, 21-507
February
Page 4
"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.
"Financial interest." Any financial interest in a legal
entity engaged in business for profit which comprises more
than 5% of the equity of the business or more than 5% of the
assets of the economic interest in indebtedness.
"Immediate family." A parent, spouse, child, brother
or sister.
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.
The use of authority of office is not limited merely to voting but extends 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.
In each instance of a conflict of interest, a public official/public employee 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.
Per the Pennsylvania 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) 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
Confidential Advice, 21-507
February
Page 5
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
Act, a 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.
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 apply, 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
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 applying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
As a Township Supervisor, you are a Public Official as that term is defined by the
Ethics Act, 65 Pa.C.S.§1101 et seq. Furthermore, as defined by the Ethics Act, your
[immediate family] is a member of your immediate family, and the business you and
[immediate family] operate would be a business with which you and/or your immediate
family are associated. As a Public Official you are restricted from utilizing the authority of
your public office for the pecuniary (financial) benefit of yourself, a member of your
immediate family, or a business with which you or a member of your immediate family is
associated. As such, you are prohibited from participating in actions of the [Township]
Board of Supervisors which would result in a financial benefit you, your [immediate
family], or the business which you and [immediate family] operate.
Confidential Advice, 21-507
February
Page 6
However, pursuant the submitted facts, you would not have a conflict of interest
pursuant to Section 1103(a) of the Ethics Act, with regard to participating in matters before
the Township Board of Supervisors, in as much as the submitted facts do not indicate
whether any action/use of office you may engage in (regarding the approval of the
residential land development that is proposed to occur on property adjoining your
property) would increase or decrease the value of your property or otherwise financially
impact you, a member of your immediate family, or a business with which you or a
member of your immediate family is associated.
Therefore, you are generally advised that you do not have a conflict of interest
under Section 1103(a) of the Ethics Act with regard to participating in official actions of
the Board of Supervisors concerning the proposed residential land development unless-
(1) you would be consciously aware of a private pecuniary benefit for yourself, a member
of your immediate family, or a business with which you or a member of your immediate
family is associated; (2) your action(s) would constitute one or more specific steps to
attain that benefit; and (3) neither the de minimis exclusion nor the class/subclass
exclusion to the definition of "conflict" or "conflict of interest" as set forth in the Ethics Act,
65 Pa.C.S. § 1102, would be applicable.
In each instance 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 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
interpretation of the Ethics Act. Specifically, this advisory does not address any
applicability of the Second Class Township Code.
Conclusion -
As a Township Supervisor, you are a public official subject to the provisions of the
Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et seq.
Pursuant to Section 1103(a) of the Ethics Act, you generally would not have a
conflict of interest with regard to participating in matters before the Township Board of
Supervisors unless your use of office would result in a private pecuniary (financial) benefit
to you, a member of your immediate family, or a business with which you or a member of
your immediate family is associated. The submitted facts do not indicate whether the
approval of the proposed land development by the Township Board of Supervisors would
increase or decrease the value of your property or otherwise financially impact you, a
member of your immediate family, or a business with which you or a member of your
immediate family is associated.
Confidential Advice, 21-507
February
Page 7
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.
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,
rian D. J cis'n
Chief Coun