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Home My WebLink About22-503 Passarella 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 26, 2022 To the Requester: Mr. Martin Passarella 22-503 Dear Mr. Passarella: This responds to your email received January 13, 2022, 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), your wife would have a conflict of interest in her capacity as a Member of Council for Carrolltown Borough (Borough) with regard to nominating you, in your capacity as a Member of Borough Council, for the office of Borough Council President or Borough Council Vice President and/or voting in favor of your election to either office, where the Borough Council President and the Borough Council Vice President do not receive any compensation in addition to the standard stipend of $50.00 per month which is paid to all Borough Council Members? Brief Answer: NO. Your wife would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to nominating you for the office of Borough Council President or Borough Council Vice President and/or voting in favor of your election to either office because her use of the authority of her public office as a Borough Council Member would not result in a private pecuniary (financial) benefit for you. Passarella, 22-503 January 26, 2022 Page 2 Facts: You request an advisory from the Commission on behalf of your wife based upon submitted facts that may be fairly summarized as follows: You and your wife are Members of Borough Council. The Borough is located in Cambria County, Pennsylvania. Borough Council Members are paid a standard stipend of $50.00 per month for their service. The Borough Council President and the Borough Council Vice President do not receive any compensation in addition to the standard monthly stipend paid to all Borough Council Members. The question that is presented by your advisory request is whether your wife would have a conflict of interest with regard to nominating you for the office of Borough Council President or Borough Council Vice President and/or voting in favor of your election to either office. 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. Sections 1103(a) and 1103(j) of the Ethics Act provide: § 1103. Restricted activities (a) Conflict of interest. -- No public official or public employee shall engage in conduct that constitutes a conflict of interest. (j) Voting conflict. -- Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section Passarella, 22-503 January 26, 2022 Page 3 makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three-member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. 65 Pa.C.S. §§ 1103(a), 1103(j). 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. Immediate family. A parent, spouse, child, brother or sister. 65 Pa.C.S. § 1102. (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. Passarella, 22-503 January 26, 2022 Page 4 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. In each instance of a conflict of interest, a public official/public employee would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be observed in the event of a voting conflict. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As Members of Borough Council, you and your wife are public officials subject to the provisions of the Ethics Act. You as that term is defined in the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, your wife would have a conflict of interest in matters before Borough Council that would result in a private pecuniary (financial) benefit for you or her. It is noted that because your wife is a member of your flict of interest under Section 1103(a) of the Ethics Act in matters before Borough Council that would result in a private pecuniary (financial) benefit for you or her. Because the Borough Council President and the Borough Council Vice President do not receive any compensation in addition to the standard monthly stipend paid to all Borough Council Members, there would be no pecuniary (financial) benefit to you if you would be elected to either office. Therefore, you are advised that your wife would not have a conflict of interest with regard to nominating you for the office of Borough Council President or Borough Council Vice President and/or voting to elect you to either office. 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 Passarella, 22-503 January 26, 2022 Page 5 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