HomeMy WebLinkAbout22-515 DawsonPHONE: 717-783-1610
TOLL FREE: 1-800-932-0936
STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
FACSIMILE: 717-787-0806
WEBSITE: www.ethics.pa.gov
ADVICE OF COUNSEL
March 31, 2022
To the Requester:
Colleen R. Dawson
Dear Colleen R. Dawson:
22-515
This responds to your correspondence dated March 24, 2022, by which you requested an
advisory from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as
to the general issue presented below:
Issue:
Would the Public Official and Employee Ethics Act ("Ethics Act''), 65 Pa.C.S. § 1101 et
sec prohibit an individual serving as a county commissioner from performing work as an
independent contractor to a law firm, where a partner in that law firm serves as solicitor
for the county?
BriefAnswer: NO. The Ethics Act would not prohibit the individual from performing work
as an independent contractor to the law firm of which a law firm partner serves as the
solicitor for the county.
Facts:
You request an advisory from the Commission based upon submitted facts, the material
portion of which may be fairly summarized as follows.
In January 2020, you took office as a County Commissioner for Somerset County
("County"), Pennsylvania. Before you took office as a County Commissioner, you were employed
as a paralegal with the law firm of Barbera, Melvin & Svonavec, LLP (the "Law Firm"), in which
capacity you specialized in real estate abstracting and title insurance. Since January 2018, Michael
P. Barbera, Esquire ("Mr. Barbera"), who is a partner at the Law Firm, has served as the Solicitor
for the County. The County Solicitor reports directly to the County Board of Commissioners.
Dawson, 22-515
March 31, 2022
Page 2
Matthew G. Melvin, Esquire, who is also a partner at the Law Firm, recently inquired as to
whether you would be willing to provide real estate abstracting and closing services to the Law
Firm on an as -needed, project -by -project basis. Under the proposed arrangement, you would be
engaged by the Law Firm as a non-exclusive independent contractor and would not be hired as an
employee. As an independent contractor, you would be responsible for the means and methods of
the performance of the work as well as the scheduling and sequencing of the work. You would
perform the work at your convenience, and the work would not interfere with your obligations at
the County. You would be free to contract with any other law firm or entity requesting services.
You state that as a County Commissioner, matters pertaining to the engagement of the
County Solicitor, such as hiring or firing a County Solicitor or setting the terms of compensation
for the County Solicitor, may come before the County Board of Commissioners. You note that if
you would be reelected as a County Commissioner for a new term commencing in 2024, the
commencement of your term would coincide with the statutory reorganization meeting at which
the County Board of Commissioners traditionally appoints the County Solicitor.
You ask whether the Ethics Act would impose any prohibitions or restrictions upon you
with regard to serving as an independent contractor to the Law Firm.
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.
Act.
As a County Commissioner, you are a public official subject to the provisions of the Ethics
Sections 1103(a) and 11030) 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.
0) 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
Dawson, 22-515
March 31, 2022
Page 3
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
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), 11030).
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.
"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.
Dawson, 22-515
March 31, 2022
Page 4
"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 Ethics Act's definition of the term "conflict" or
"conflict of interest" (i.e., the "de minimis exclusion" and the "class/subclass exclusion"), 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.
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.
Per the Pennsylvania Supreme Court's decision in 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:
... must act in such a way as to put his [office/public position] to the
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
public official/public employee "must be consciously aware of a private pecuniary benefit for
himself, his family, or his business, and then must take action in the form of one or more specific
steps to attain that benefit." 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 noted above, as a County Commissioner, you are a public official subject to the
provisions of the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, you generally would
have a conflict of interest as a County Commissioner in matters that would financially impact you,
a member of your immediate family, or a business with which you or a member of your immediate
family is associated.
Section 1103(a) of the Ethics Act imposes restrictions upon you in your capacity as a
County Commissioner, rather than upon you in your private capacity. Therefore, Section 1103(a)
of the Ethics Act would not prohibit, in your private capacity, from becoming an independent
contractor to the Law Firm. If you would become an independent contractor to the Law Firm, the
Dawson, 22-515
March 31, 2022
Page 5
Law Firm would not be considered a business with which you are associated because you would
not be a director, officer, owner, employee, or holder of a financial interest in the Law Firm. Cf.,
Confidential Advice 13-554/13-1501 ("For the Firm to be considered a business with which the
State Legislator is associated, the State Legislator would have to be a director, officer, owner,
employee or holder of a financial interest in the Firm. Status as an independent contractor would
not satisfy the Ethics Act's definition of the term `business with which he is associated.' 65 Pa.C.S.
§ 1102.") Id. at 6.
With respect to your participation as a County Commissioner in matters involving the
County Solicitor, you are advised as follows. Because the Law Firm would not be a business with
which you are associated, you would not have a conflict of interest in matters before the County
Board of Commissioners that would financially impact the Law Firm and not you, a member of
your immediate family, or a business with which you or a member of your immediate family is
associated. Therefore, absent some basis for a conflict of interest such as a financial impact upon
you, a member of your immediate family, or a business with which you are associated, you would
not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating
in matters before the County Board of Commissioners that would involve the Law Firm and/or
Mr. Barbera in his capacity as the County Solicitor.
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
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,
Martin W. Harter
Acting Chief Counsel