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Home My WebLink About21-513 Eldridge 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 March 26, 2021 To the Requester: Mr. William F. Eldridge 21-513 Dear Mr. Eldridge: This responds to your correspondence dated February 16, 2021, received February 26, 2021, by which you requested an advisory from the Pennsylvania State Ethics Commission Issue: Pursuant to et seq., as a Member of Council for the Borough of Conneaut Lake (Borough), can you participate in official actions of Borough Council to approve exceptions to boat dock size limitations for Borough Council Members who rent mooring space at a Borough-owned lakefront park for their owner-built boat docks? Brief Answer: YES. As a Borough Council Member, you would not have a conflict of interest pursuant to Section 1103(a) of the Ethics Act with regard to participating in official actions of Borough Council to approve exceptions to boat dock size limitations for Borough Council Members who rent mooring space from the Borough for their owner-built boat docks, where the submitted facts do not indicate that the use of the authority 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 is associated. Facts: You request an advisory from the Commission based upon submitted facts, the material portion of which may be fairly summarized as follows: Eldridge, 21-513 March 26, 2021 Page 2 You are a Member of Borough Council, which is comprised of seven Council Members and a Mayor. The Borough is situated on the southwest shoreline of Conneaut Lake, which is used by recreational boaters. The Borough owns and operates a lakefront park known as Fire Beach (the Beach) that offers seasonal rental of Borough-owned boat docks (Borough Docks) as well as seasonal rental of mooring spaces for owner-built boat docks (Owner-Built Docks), which are built at specific locations based upon Borough-defined space and size restrictions. The Beach has thirty-six Borough Docks and sixty mooring spaces for Owner-Built Docks. Renters of Borough Docks and renters of mooring space for Owner-Built Docks enter into a Dock Rental Contract with the Borough. A Borough Council Member who wishes to rent mooring space pays the standard rental rate. Rental agreements for mooring space may be renewed each year. Per the Dock Rental Contract, the dimensions of an Owner-Built Dock may not exceed a width of two feet and a length of thirty feet. The north end of the Beach (the North End), which has fifteen mooring spaces, has become a sought-after location for mooring spaces. Prior to 2018, renters of mooring space in the North End were not monitored very closely with regard to maintaining compliance with dock spacing and dock size limits set forth in the Dock Rental Contract. Currently, eleven of the fifteen mooring spaces are associated with Owner-Built Docks that exceed dock spacing and size limits, and seven of those spaces are associated with various Borough officials, including some Borough Council Members. Due to an increase in the popularity of the Beach and a growing demand for rentals of Borough Docks and mooring spaces, Borough Council approved a change to the terms of the Dock Rental Contract in January 2021. The Dock Rental Contract now provides that renters of mooring spaces must seek written approval from the Borough for Owner-Built Docks that exceed the dock size restrictions specified in the Dock Rental Contract. You ask whether the Ethics Act would impose prohibitions or restrictions upon you with regard to participating in official actions of Borough Council to approve exceptions to dock size limitations for Borough Council Members who may request them for their Owner-Built Docks. You further pose additional questions as to whether the Ethics Act would prohibit other Borough Council Members from participating in official actions of Borough Council to approve exceptions to dock size limitations under various circumstances involving themselves. However, you did not establish legal standing to request an advisory opinion as to the proposed conduct of anyone other than yourself. Therefore, this advisory must be limited to addressing your own prospective conduct. Discussion: 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. Eldridge, 21-513 March 26, 2021 Page 3 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 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 Eldridge, 21-513 March 26, 2021 Page 4 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. Immediate family. A parent, spouse, child, brother or sister. 65 Pa.C.S. § 1102. Subject to the statutory exclusi 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 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. 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: purpose of obtaining for himself a private pecuniary benefit. Such directed action implies awareness on the part of the \[public Eldridge, 21-513 March 26, 2021 Page 5 official/public employee\] 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 Act, a himself, his family, or his business, and then must take action in the form of one or more specific 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 a Borough Council Member, you are a public official subject to the provisions of the Ethics Act. As a public official, you are restricted from using the authority of your public office for the private 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. You are advised that you would not have a conflict of interest pursuant to Section 1103(a) of the Ethics Act with regard to participating in official actions of Borough Council to approve exceptions to dock size limitations for Borough Council Members who may request them for their Owner-Built Docks, as the submitted facts do not indicate that the use of the authority 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 is associated. 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 Borough Code. Conclusion: As a Borough Council Member, you are a public official subject to the provisions of the et seq. As a public official, you are restricted from using the authority of your public office for the private 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. You would not have a conflict of interest pursuant to Section 1103(a) of the Ethics Act with regard to participating in official actions of Borough Council to approve exceptions to dock size limitations for Borough Council Members who may request them for their Owner-Built Docks, as the submitted facts do not indicate that the use of the authority 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 is associated. 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. Eldridge, 21-513 March 26, 2021 Page 6 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, Brian D. Jacisin Chief Counsel