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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