Loading...
HomeMy WebLinkAbout21-560 BannonPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL November 18, 2021 To the Requester: Ms. Michele M. Bannon Dear Ms. Bannon: FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov 21-560 This responds to your correspondence dated October 26, 2021, by which you requested an advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the issue presented below: Issue: Facts: Would the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1101 etseq., prohibit you from seeking election as the Mayor of the City of Carbondale (City) in 2023 while you are serving as the City Clerk? Brief Answer: NO. The Ethics Act would not prohibit you from seeking election as the City Mayor while you are serving as the City Clerk; however, Section 1103(a) of the Ethics Act (pertaining to conflict of interest) would generally prohibit you, in your capacity as the City Clerk, from using City resources for election campaign -related purposes. You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows: You have served as the City Clerk since July 5, 1994. The City is governed by the City of Carbondale Home Rule Charter (City Home Rule Charter). You ask whether the Ethics Act would impose prohibitions or restrictions upon you with regard to holding your position as the City Clerk while seeking election as the City Mayor in 2023. Bannon, 21-560 November 18, 2021 Page 2 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: § 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. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict" or "conflict of interest" (i.e., the "de minimis exclusion" and the "class/subclass exclusion"), 65 Bannon, 21-560 November 18, 2021 Page 3 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. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As the City Clerk, you are a public official/public employee subject to the provisions of the Ethics Act. The Ethics Act would not prohibit you from seeking election as the City Mayor in 2023 while you are serving as the City Clerk; however, Section 1103(a) of the Ethics Act would generally prohibit you, in your capacity as the City Clerk, from using City resources for election campaign -related purposes. See, Spanik, Order 1719; Miller, Order 1681; Wright, Order 1541; Habay, Order 1313; Freind, Order 800. If you would be elected as the City Mayor, upon assuming said position, you would in that capacity be a public official subject to the provisions of the Ethics Act. It is noted that Article V of the City Home Rule Charter, as amended, provides that the City Mayor shall not hold any compensated appointive City office or City employment during the term of office for which the City Mayor was elected, with the exception that the City Mayor may assume the duties of the City Managing Director upon the authorization of the City Council. See, City Home Rule Charter, Article V, §§ C5-5, C5-11, as amended. 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 Bannon, 21-560 November 18, 2021 Page 4 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, rian D. Ja isi Chief Coun I