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HomeMy WebLinkAbout21-568-CL Confidential 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 January 24, 2022 To the Requester: 21-568-CL This responds to your email received \[DATE REDACTED\], by which you requested clarification of Confidential Advice of Counsel 21-568, regarding the applicability of the Conflicts of Interests restrictions of the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1101 et seq. Issues for Clarification: 1. What is the Governmental Body for purposes of applying the Pennsylvania Public Official and Employee Ethics Act? Brief Answer: The \[CITY\] \[DEPARTMENT\] . 2. \[ENITY\]? Brief Answer: One does not violate the Conflict of Interests prohibition contained within 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 \[ENTITY 3. Could the \[PUBLIC OFFICIAL\], without \[DIRECTOR\] involvement, delegate any matters involving the \[ENTITY\] to a subordinate employee within the \[DEPARTMENT\]? Brief Answer: Given \[DIRECTOR\] position within the \[DEPARTMENT\], there appears to be no other option for delegation, as the only superior to \[DIRECTOR\] is the \[PUBLIC OFFICIAL\]. So long as there is no use of authority or any undue influence placed upon the delegated party, there appears to be no violation under the Ethics Act. Confidential Advice, 21-568-CL January 24, 2022 Page 2 Facts: By communication received \[DATE REDACTED\], you initially requested an advisory from the Pennsylvania State Ethics Commission (Commission) regarding Conflict of Interests pursuant Section 1103(a) of the Ethics Act. In response to your initial advisory request, Confidential Advice, 21-568 was issued to you on December 27, 2021. By email received \[DATE REDACTED\], you requested clarification as to 1). what is the Governmental Body for purposes of applying the Pennsylvania Public Official and Employee Ethics Act? 2). \[ENTITY\]? 3). Could \[PUBLIC OFFICIAL\], without \[DIRECTOR\] involvement, delegate any matters involving the \[ENTITY\] to a subordinate employee within the \[DEPARTMENT\]? Discussion/Conclusion: 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 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. The recitation of the facts and Section 1103(a) restrictions set forth in Confidential Advice, 21-568 are incorporated herein by reference. In addition, the \[ORGANIZATIONAL CHART\] which was provided along with the request for clarification is likewise incorporated by reference. In response to your request for clarification of Advice of Counsel 21-568, you are advised as follows: Body for purposes of applying the Upon review of the \[ORGANIZATIONAL CHART\], t \[DEPARTMENT\] . Regarding tmay apply to matters involving \[ENTITY\], in order for the class/subclass exclusion to apply, two criteria must be met: (1) the affected public official, immediate family member, or business with which the public official or immediate family member is associated must be a member of a class consisting of the general public or a true subclass consisting of more than one member; and (2) the public official, immediate family member, or business with which the public official or immediate family member of the class/subclass. 65 Pa.C.S. § 1102; see, Kablack, Opinion 02-003; Rubenstein, Opinion 01- 007. The first criterion of the exclusion is satisfied where the members of the proposed subclass are similarly situated as the result of relevant shared characteristics. The second criterion of the exclusion is satisfied where the individual/business in question and the other members of the Confidential Advice, 21-568-CL January 24, 2022 Page 3 class/subclass are reasonably affected to the same degree by the proposed action. Kablack, supra. Therefore \[DIRECTOR\] would not transgress the Conflict of Interests prohibition contained with the Ethics Act, so long as the use of office 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 \[ENTITY Regarding delegation to a subordinate employee, pursuant to Section 1103(a), where there is no pre- subordinate is itself a use of authority of office. (See, Edwards, Opinion 91 -003 at 6.) To the extent that \[DIRECTOR\] would delegate authority to a subordinate, she/he would still be utilizing the authority of her/See, Confidential Opinion, 02-004). The foregoing IS NOT to suggest that there would be any improper influence exerted as to this delegation, but merely to explain why the delegation to a subordinate would fail to avoid a conflict of interest. However, in the event a superior within \[DIRECTOR\]-of-command could reallocate all matters and work involving instances where her/his (\[DIRECTOR\] could indirectly impact \[ENTITY\] to persons who would not be subordinates within \[DIRECTOR\]-of-command; and there would be no means by which she/he could use the authority of the office of \[DEPARTMENT\] or confidential information accessed as a result of being in that position for the private pecuniary benefit of herself/himself, her/his immediate family members, or any business with which she/he or her/his immediate family members would be associated, (i.e. \[ENTITY\]), a conflict of interests would be avoided. See, Dobrowolski, 07-002. Given \[DIRECTOR\]\[DEPARTMENT\], there appears to be no mechanization for delegation (other than that proposed) as the only superior to \[DIRECTOR\] is \[PUBLIC OFFICIAL\]. So long as there is no use of authority or any undue influence placed upon the delegated party, there appears to be no alternative to avoid a violation under the Ethics Act. 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 will be made available as a public record. 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 Confidential Advice, 21-568-CL January 24, 2022 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, Brian D. Jacisin Chief Counsel