HomeMy WebLinkAbout21-551 Boyd
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
September 30, 2021
To the Requester:
Mr. Morgan Boyd
21-551
Dear Mr. Boyd:
This responds to your correspondence dated September 16, 2021, by which you requested
an advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as
to the issue presented below:
Issue:
Does the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1101 et seq.,
place restrictions upon a County Commissioner who, in his private capacity, wishes to
engage in a private business endeavor marketing services to municipalities within the
County?
Brief Answer: NO. The Ethics Act does not prohibit public officials from engaging in
outside business activities or employment; however, the public official may not use the
authority of his public position -- or confidential information obtained by being in that
position -- for the advancement of his own private pecuniary benefit or that of a business
with which he is associated.
Facts:
You request an advisory from the Commission based upon submitted facts that may be
fairly summarized as follows:
You currently serve as the Chairman of the Lawrence County Board of Commissioners. In
this capacity you have regular interactions with municipal officials in the various boroughs,
townships, and the city which make up Lawrence County.
Boyd, 21-551
September 30, 2021
Page 2
Through these interactions, you have determined that there is a significant need for third-
party code enforcement services, zoning officer services, and general municipal consulting
services by the majority of Lawrence Countys municipalities. It is your intention to start a
company to solicit contracts from the municipalities to provide these services to them. At the same
time, in your capacity as a County Commissioner, from time to time you vote on monetary
allocations to the municipalities in Lawrence County. Predominantly, these allocations are related
to transportation projects and the funding comes from discretionary County liquid fuel accounts.
At times, a general fund allocation is made by the County to a municipality for the purpose of
completing a municipal project, such as the purchase of new playground equipment, or to fund a
local festival.
You request an Advice of Counsel seeking guidance as to the question of whether you are
able to form this business and solicit consulting, zoning, and code enforcement contracts from the
various municipalities in Lawrence County. Additionally, you seek guidance as to what, if any,
precautions need to be taken to ensure that you do not violate the Ethics Act, while concurrently
overseeing your private business endeavor and serving the County as a Commissioner.
You closed by stating that you have no intention of soliciting or bidding on contracts from
Lawrence County, and that you intend this company to be solely focused on municipal work.
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 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 material facts.
It is further noted that, pursuant to the same aforesaid Sections of the Ethics Act, an
opinion/advice may be given only as to prospective (future) conduct. To the extent that your
inquiry relates to conduct that has already occurred, such past conduct may not be addressed in the
context of an advisory opinion. However, to the extent your inquiry relates to future conduct, your
inquiry may and shall be addressed.
Section 1103(a) of the Ethics Act provides:
§ 1103. Restricted activities
(a) Conflict of interest. -- No public official or public
employee shall engage in conduct that constitutes a conflict of
interest.
65 Pa.C.S. §§ 1103(a).
Boyd, 21-551
September 30, 2021
Page 3
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.
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.
Governmental body. Any department, authority,
commission, committee, council, board, bureau, division, service,
office, officer, administration, legislative body or other
establishment in the executive, legislative or judicial branch of a
state, a nation or a political subdivision thereof or any agency
performing a governmental function.
Governmental body with which a public official or
public employee is or has been associated. The governmental
body within State government or a political subdivision by which
the public official or employee is or has been employed or to which
the public official or employee is or has been appointed or elected
and subdivisions and offices within that governmental body.
65 Pa.C.S. § 1102.
Boyd, 21-551
September 30, 2021
Page 4
5 Pa.C.S. § 1102, a public official is prohibited from using the authority of
public office or confidential information received by holding such a public position for the private
pecuniary benefit of the public official 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 is 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:
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
public official 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
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 Commissioner for Lawrence County, 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. Your
proposed Code Enforcement Business (Business) would be considered a business with which you
are associated as defined by the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, you
would generally have a conflict of interest in your public capacity in matters that would financially
benefit yourself, your Business, or private customer(s)/client(s) of that Business.
In applying the above provisions of the Ethics Act to the instant matter, it is noted that
Section 1103(a) of the Ethics Act does not prohibit public officials from having outside business
activities or employment; however, the public official may not use the authority of his public
position - or confidential information obtained by being in that position - for the advancement of
his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion
89 -011.
Boyd, 21-551
September 30, 2021
Page 5
Examples of conduct that would be prohibited under Section 1103(a) would include: (1)
the pursuit of a private business opportunity in the course of public action, Metrick, Order 1037;
(2) the use of governmental facilities, such as governmental telephones, postage, staff, equipment,
research materials, or other property, or the use of governmental personnel, to conduct private
business activities, Freind, Order 800; Pancoe, supra; and (3) the participation in an official
capacity as to matters involving the business with which the public official is associated in his
private capacity. Gorman, Order 1041; Rembold, Order 1303; Wilcox, Order 1306), or private
customer(s)/client(s) (Miller, Opinion 89 -024; Kannebecker, Opinion 92 -010).
Noting that the Board of County Commissioners is a separate and distinct governmental
body from that of the various municipal entities (see Commonwealth v. Erie Metropolitan Transit
Authority, 281 A.2d 882, 444 Pa. 345, (1971)), the Ethics Act would not prohibit a municipalitys
use of your private Business for the purposes set forth in your submitted facts. However, because
of the relationship between the various municipalities and the County, you may have access to
certain information that would not be generally available to the public. You are cautioned as to
the above provision of law and you are further advised that the use of such information to assist
your private Business in obtaining contracts/business with a municipality - even if you are not
involved in any County use of office regarding that information - would be contrary to the
provisions of the State Ethics Act.
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. Specifically, this Advisory does not address any
applicability of The County Code, 16 P.S. § 101 et seq.
Conclusion:
As a Commissioner for Lawrence County, you are a public official subject to the provisions
of the Public Official and Employet seq. Your
The Ethics Act does not prohibit public officials
from having outside business activities or employment; however, the public official may not use
the authority of his public position -- or confidential information obtained by being in that position
-- for the advancement of his own private pecuniary benefit or that of a business with which he 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.
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.
Boyd, 21-551
September 30, 2021
Page 6
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