HomeMy WebLinkAbout21-529 Saad
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
June 2, 2021
To the Requester:
21-529
Dear Mr. Theodore A. Saad, Esquire:
This responds to your letter received May 12, 2021, by which you request an advisory from
the Pennsylvania State Ethics Commission , seeking guidance as to the general
issue presented below:
Issue:
1. Would et
seq., prohibit a public official from serving as an independent contractor to a business that
maintains contracts with his governmental entity?
Brief Answer: NO. Based upon the submitted facts, as an independent contractor, the
business is not a business with which the public official is associated for purposes of the
1
Ethics Act.
Facts:
As legal counsel you have been authorized by Mr. Christopher Frye, Jr., Mayor of the City
of New Castle, Pennsylvania, to request an advisory from the Pennsylvania State Ethics
Commission on his behalf. You have submitted facts that may be fairly summarized as follows:
Prior to his election as Mayor, Mr. Frye was employed for six years as a Community
Support Coordinator for Lawrence County Social Services, Inc. (LCSS). Prior to his election as
Mayor, LCSS maintained a contract with the City of New Castle to administer HOME
1
However, status as an independent contractor alone does not insulate a public official/employee from a conflict of interests. In Snyder v. State
Ethics Commission, 686 A.2d 843 (Pa. Commw. Ct. 1996), a conflict of interests was established when Snyder, as a township supervisor,
repeatedly voted in favor of various development projects seeking approval from the township. At the time of his vote, Snyder knew or had a
reasonable expectation that he was to serve as a subcontractor on those same projects he was voting to approve. Snyder was found to have used
his public office to facilitate a pecuniary gain for himself/his business despite his status as an independent contractor.
Saad, 21-529
June 2, 2021
Page 2
Grant Program. The HOME Grant Program is a Federally funded program administered by the
2
Pennsylvania Department of Community and Economic Development.
Mr. Frye has recently been approached by LCSS Director of Workforce Development
Programs to gauge interest in undertaking a 10 hour per week contract with LCSS. The
position will involve assisting adults in recovery and at-risk youth programs.
responsibilities would include direct service team meetings with program staff, job development
duties, such as recruitment of potential employers willing to hire the targeted populations, and
participate and assist with facilitation of juvenile delinquent virtual and in-person workshops, to
build positive character development, improve communication, and change behavior.
Mr. Frye will not be involved with the HOME Program. As Mayor, Mr. Frye does not
have the ability to enter contracts with LCSS. It is the responsibility of City Council to enter into
agreements and authorize the Mayor and Comptroller to execute any contract.
Mr. Frye is requesting an advisory from the Ethics Commission as to whether accepting a
position as an independent contractor with LCSS would violate the conflict of interest provisions
of the Pennsylvania State Ethics Act.
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.
As the Mayor for the City of New Castle, Lawrence County, Pennsylvania, Mr. Frye is a
public official as that term is defined in the Ethics Act and is therefore 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.
2
According to https://dced.pa.gov/programs/home/ The Pennsylvania HOME Program is a federally funded program
that provides municipalities with grant and loan assistance to expand and preserve the supply of decent and affordable
housing for low and very low-income Pennsylvanians. HOME funds can be used in a variety of ways to address
critical housing needs in the Commonwealth, including market-oriented approaches that offer opportunities such as
homeownership or rental activities to revitalize communities with new investment. HOME Program funds are
provided to DCED from the U.S. Department of Housing and Urban Development (HUD) through the annual
entitlement appropriation process.
Saad, 21-529
June 2, 2021
Page 3
(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
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.
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.
Saad, 21-529
June 2, 2021
Page 4
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.
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.
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 \[public
official/public employee\] 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
ary benefit for
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:
Saad, 21-529
June 2, 2021
Page 5
As the Mayor for the City of New Castle, Mr. Frye is a public official subject to the
provisions of the Ethics Act. As a public official, Mr. Frye is restricted from using the authority
of his public office for the private pecuniary (financial) benefit of himself, a member of his
immediate family, or a business with which he or a member of his immediate family is associated.
Based upon the submitted facts, Lawrence County Social Services, Inc. (LCSS) is not a
business with which Mr. Frye is associated because he is not a director, officer, owner, employee,
or holder of a financial interest in LCSS (status as an independent contractor does not satisfy the
(See Confidential Advice 13-554/13-
the State Legislator is associated, the State Legislator would have to be a director, officer, owner,
employee or holder of a financial interest in the Firm. Status as an independent contractor would
Id. at 6. (See also Steigerwalt, Advice 17-504; Casey, Advice 14-539; Say, Advice 12-
526).
You are advised that Mr. Frye would not have a conflict of interest under Section 1103(a)
of the Ethics Act with regard to participating in discussions or votes of the City on issues that
would financially impact LCSS, including the HOME Grant, as the submitted facts do not indicate
that the use of the authority of his office would financially impact him, a 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, Mr. Frye would be required to abstain from
participation in his public capacity as Mayor of the City of New Castle. Section 1103(a) of the
Ethics Act would only restrict Mr. Frye in his capacity as a public official.
In addition to the conflict of interest provision of the Ethics Act, Sections 1103(b) and
1103(c) of the Ethics Act provide, in part, that no person shall offer or give to a public
official/public employee anything of monetary value and no public official/public employee shall
solicit or accept anything of monetary value based upon the understanding that the vote, official
action, or judgment of the public official/public employee would be influenced thereby. Reference
is made to these provisions of the law (i.e. §§1103(b),(c)) not to imply that there has been or will
be any transgression thereof, but merely to provide a complete response to the question presented.
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.
Conclusion:
Mr. Christopher Frye, Jr., as the Mayor of the City of New Castle, Pennsylvania, is a public
official as that term is defined in the Ethics Act and is therefore subject to the provisions of the
Ethics Act.
Saad, 21-529
June 2, 2021
Page 6
The Pennsylvania
1101 et seq., would not prohibit him, in his private capacity, from serving as an independent
contractor for Lawrence County Social Services, Inc. (LCSS), in that LCSS is not a business with
which Mr. Frye is associated for purposes of 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.
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.
Respectfully,
Brian D. Jacisin
Chief Counsel