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Home My WebLink About21-559 Stickney 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 November 18, 2021 To the Requester: Ms. Roxann L. Stickney 21-559 Dear Ms. Stickney: This responds to your correspondence dated October 21, 2021, by which you requested an advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the issue presented below: Issue: Whether, pursuant to Section 1103(a) of the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1103(a), you would have a conflict of interest in your capacity as the Zoning Enforcement Officer for Summit Township (Township), Butler County, Pennsylvania, with regard to enforcing the Township Zoning Ordinance with respect to buildings which Hunter Realty Co., LP proposes to construct for a truck sales and service business located in the Township, when your husband owns a business that provides automotive and truck repairs and customization? Brief Answer: You generally would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to enforcing the Township Zoning Ordinance with respect to unless your use of the authority of your public position as the Township Zoning Enforcement Officer would result in a private pecuniary Facts: You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows: Stickney, 21-559 November 18, 2021 Page 2 You are the Township Zoning Enforcement Officer. Your duties involve enforcing Township Zoning Ordinance No. 74, which includes the requirements for new and preexisting buildings. Your husband, James R. Stickney, owns Clearfield Custom, LLC, which provides automotive and truck repairs and customization. You are not employed with Clearfield Custom, LLC. Until January 2019, your husband was employed with Hunter Truck, which sells and repairs trucks. Hunter Truck does not provide truck customization. Buildings and parking for Hunter Truck are located on property in the Township which is owned by Hunter Realty Co., LP. On April 16, 2021, a fire destroyed a building on the property owned by Hunter Realty Co., LP. Instead of rebuilding in the same location, Hunter Realty Co., LP proposes to construct two buildings. The first proposed building will meet the current requirements of the Township Zoning Ordinance. For the second proposed building, Hunter Realty Co., LP wants to demolish a preexisting nonconforming building and replace it with a larger building. Upon the completion of pending matters involving the northern and southern side setbacks for the second proposed building, you will be responsible for ensuring that both proposed buildings comply with the Township Zoning Ordinance. You ask whether you would have a conflict of interest with regard to enforcing the 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. 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). The following terms related to Section 1103(a) are defined in the Ethics Act as follows: Stickney, 21-559 November 18, 2021 Page 3 § 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. Immediate family. A parent, spouse, child, brother or sister. 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 (i.e. 65 Pa.C.S. § 1102, a public official/public employee is prohibited from using the authority of public office or confidential information received by holding such a public position for the private pecuniary (financial) 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. In each instance of a conflict of interest, the public official/public employee would be required to abstain from participation. The abstention requirement would extend 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. Stickney, 21-559 November 18, 2021 Page 4 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 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. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As the Township Zoning Enforcement Officer, you are a public official/public employee subject to the provisions of the Ethics Act. You as that term is defined in the Ethics Act. Clearfield Custom, LLC is a business with which your husband is associated in his capacity as the owner. Pursuant to Section 1103(a) of the Ethics Act, you generally would have a conflict of interest as the Township Zoning Enforcement Officer in matters that would financially impact you, your husband, or Clearfield Custom, LLC. You are advised that you generally would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to enforcing the Township Zoning Ordinance with respect unless your use of the authority of your public position as the Township Zoning Enforcement Officer would result in a private pecuniary (financial) benefit for you, your husband, or Clearfield Custom, LLC. 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. Stickney, 21-559 November 18, 2021 Page 5 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