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To the Requester:
Mr. Peter C. Gonze
Dear Mr. Gonze:
STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
FACSIMILE: 717-787-0806
WEBSITE: www.ethics.pa.gov
ADVICE OF COUNSEL
April 22, 2021
21-520
This responds to your correspondence dated March 18, 2021, received March 26, 2021, by
which you requested an advisory from the Pennsylvania State Ethics Commission (Commission).
Issue:
Whether, pursuant to Section 1103(a) of the Public Official and Employee Ethics Act
(Ethics Act), 65 Pa.C.S. § 1101 et seq., you would have a conflict of interest in your
capacity as a Supervisor for Paradise Township (Township) with regard to participating in
discussions, votes, or other actions of the Township Board of Supervisors in matters
involving a developer's proposal for the development of a large resort on land adjacent to
property owned by Trinity Episcopal Church (Church), of which you are a Member and
the Treasurer?
Brief Answer: You would not have a conflict of interest with regard to participating in
discussions, votes, or other actions of the Township Board of Supervisors in matters
involving the proposed development of land adjacent to property owned by the Church
unless: (1) you would be consciously aware of a private pecuniary benefit for yourself or
the Church, which is a business with which you are associated in your capacity as the
Treasurer; (2) your action(s) would constitute one or more specific steps to attain that
benefit; and (3) neither of the statutory exclusions to the definition of "conflict" or "conflict
of interest" as set forth in the Ethics Act, 65 Pa.C.S. § 1102, would be applicable. t
1 Action having a de mznzmzs economic impact or which affects to the saine 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 mermber of his hmnediate family or a
business with which he or a member of his irmnediate family is associated, does not constitute a conflict of interests.
Gonze, 21-520
April 22, 2021
Page 2
Facts:
You request an advisory from the Commission based upon the following submitted facts:
You are a Supervisor for the Township, which is located in Monroe County, Pennsylvania.
A developer (Developer) proposes to construct a large resort (the Developer's Project) in the
Township that would include hotels, cabins, a conference center, a spa, and attendant facilities. A
sketch plan for the Developer's Proj ect is currently before the Township Planning Commission for
review. It is anticipated that the Developer's Project will eventually come before the Township
Board of Supervisors for a conditional use hearing and land development approval.
The Developer's Project would be adjacent to property owned by the Church. You state
that the Developer's Project may or may not have an impact on the Church's property. You are a
Member of the Church, and you serve as the Church Treasurer, in which capacity you are an officer
of the Church. You receive no payment for serving as the Church Treasurer, and you are not a
decision -maker on secular Church business or policy.
You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions
upon you with regard to participating in discussions, votes, or other actions of the Township Board
of Supervisors that may affect the Developer's Project. In particular, you pose the following
questions:
Whether you would be permitted to participate in discussions or votes on a
conditional use application for the Developer's Project;
2. Whether you would be permitted to participate in discussions or votes regarding
improvements that may be proposed in the Developer's Project;
Whether you would be permitted to review the land development plan, the
conditional use application, or other documents involving the Developer's Project;
and
4. Whether you would be permitted to participate in the review and subsequent
approval or disapproval of the Developer's Project.
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 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 the material facts.
Gonze, 21-520
April 22, 2021
Page 3
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 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
Gonze, 21-520
April 22, 2021
Page 4
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.
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 pecuniary benefit as well
as the motivation to obtain that benefit for himself.
Gonze, 21-520
April 22, 2021
Page 5
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.
Conclusion:
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 subject to the provisions of the Ethics
Act. The Church is a business with which you are associated in your capacity as an officer (i.e.,
Treasurer). 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, such as the Church.
You are advised that would not have a conflict of interest under Section 1103(a) of the
Ethics Act with regard to participating in:
(1) discussions or votes on a conditional use application for the Developer's Project;
(2) discussions or votes on improvements that may be proposed in the Developer's
Project;
(3) the review of the land development plan, the conditional use application, or other
documents involving the Developer's Project; or
(4) the review and subsequent approval or disapproval of the Developer's Project,
UNLESS you are consciously aware that by engaging in any of the foregoing
(discussions/votes/reviews/approvals/etc.) you are furthering a financial benefit that is beyond de
minimis and/or would not constitute a class/subclass exception, to yourself, your immediate family,
and/or to the Church.
If you are aware or have a reasonable expectation that a financial benefit as described above
would occur, you are 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.
Gonze, 21-520
April 22, 2021
Page 6
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,
rian D. Ja isi
Chief Coun