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HomeMy WebLinkAbout21-555 Mosca 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 October 12, 2021 To the Requester: Thomas J. Mosca, Esquire 21-555 Dear Attorney Mosca: This responds to your correspondence dated October 6, 2021, by which you requested an advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the issue presented below: Issue: Would the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1101 et seq., place any restrictions upon the Township serving as the location of a County Board of Elections Ballot Drop Box? Brief Answer: NO. The Ethics Act is not implicated in the above situation since there is no reason to believe, or factual basis to support, that a transgression of the Ethics Act would occur by the Township serving as the location of a County Board of Elections Ballot Drop Box. Facts: You serve as the Solicitor for Dallas Township, Luzerne County, Pennsylvania. You have been authorized by the Board of Supervisors to request an advisory opinion as to the applicability of the Pennsylvania Public Official and Employee Ethics Act (65 Pa.C.S.§1101 et seq.) should the Township serve as the location of a County Board of Elections Ballot Drop Box. At a Regular meeting of the Township Board of Supervisors, the Chairperson of the Luzerne County Board of Elections requested the Township host a Ballot Drop Box, to be placed in the lobby of the Township municipal building on October 19, 2021. The Ballot Drop Box will be in serve as a depository for ballots concerning the November 2, 2021 election. The Pennsylvania Department of State provides, in part, the following concerning Ballot Drop Boxes: \[v\]oters may return their mail-in or absentee ballot at their county election boards designated drop box(es) or drop-off Mosca, 21-555 October 12, 2021 Page 2 location. Ballots must be dropped off before 8 p.m. on election day. See https://www.vote.pa.gov/Voting-in-PA/pages/drop-box.aspx. Additionally, the Supervisors note that a State Representative leases space within the municipal building; and one of the Dallas Township Supervisors is presently running for re- election during the November 2, 2021 election. 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. Section 1103(a) of the Ethics Act reads: § 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). Furthermore, the following terms pertaining to conflicts of interest pursuant the Ethics Act are defined 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 Mosca, 21-555 October 12, 2021 Page 3 performance of duties and responsibilities unique to a particular public office or position of public employment. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethi 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. Conclusion: Having established the above general principles, you are advised that as stated the facts do not implicate a use of office by a public official/public employee in furtherance of a pecuniary benefit. There is no reason to believe, or factual basis to support, that a transgression of the Ethics Act would occur solely by the Township serving as the location of a County Board of Elections Ballot Drop Box. Lastly, the propriety of the proposed conduct has only been addressed under 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. 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. Respectfully, Brian D. Jacisin Chief Counsel