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PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806
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613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL
April 11, 2022
To the Requester:
22-519
This responds to your correspondence dated March 30, 2022, by which you requested a
confidential 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
seq., prohibit an individual serving as a Member of the \[BOARD\] of the
\[GOVERNMENTAL BODY\] from: (1) serving on the board of a \[TYPE OF ENTITY\]
that seeks to \[ACHIEVE A CERTAIN GOAL\] in \[A PARTICULAR POLITICAL
SUBDIVISION\]; or (2) engaging in \[TYPE OF ACTIVITIES\] for the \[TYPE OF
ENTITY\] as either a member of the board of the \[TYPE OF ENTITY\] or a private
supporter with no formal connection to the \[TYPE OF ENTITY\]?
Brief Answer: NO. The Ethics Act would not prohibit the individual from: (1) serving on
the board of the \[TYPE OF ENTITY\]; or (2) engaging in \[TYPE OF ACTIVITIES\] for the
\[TYPE OF ENTITY\] as either a member of the board of the \[TYPE OF ENTITY\] or a
private supporter with no formal connection to the \[TYPE OF ENTITY\].
Facts:
You request a confidential advisory from the Commission based upon submitted facts that
may be fairly summarized as follows.
Confidential Advice, 22-519
April 11, 2022
Page 2
The \[GOVERNMENTAL BODY\] is a Pennsylvania \[TYPE OF ORGANIZATIONAL
STRUCTURE\] that manages the \[NAME\] pursuant to a \[TYPE OF AGREEMENT\] with the
\[POLITICAL SUBDIVISION\]. The \[NAME\] is a collection of \[POLITICAL SUBDIVISION-
OWNED FACILITIES\] that \[PERFORM A CERTAIN FUNCTION\] in the \[POLITICAL
SUBDIVISION\]. In \[MONTH, YEAR\], a \[POLITICAL SUBDIVISION PUBLIC OFFICIAL\]
appointed you as a Member of the \[GOVERNMENTAL BODY\] \[BOARD\]. You are not
compensated for your service on the \[GOVERNMENTAL BODY\] \[BOARD\].
There is a \[TYPE OF ENTITY\] that seeks to \[ACHIEVE A CERTAIN GOAL\] in the
\[POLITICAL SUBDIVISION\]. You seek guidance as to whether the Ethics Act would impose
any prohibitions or restrictions upon you with regard to engaging in activities involving the \[TYPE
OF ENTITY\]. In particular, you pose the following questions:
(1) Whether the Ethics Act would prohibit you from serving on the Board of the \[TYPE
OF ENTITY\] while also serving as a Member of the \[GOVERNMENTAL BODY\]
\[BOARD\]; and
(2) Whether the Ethics Act would prohibit you from engaging in \[TYPE OF
ACTIVITIES\] for the \[TYPE OF ENTITY\] as either a member of the Board of the
\[TYPE OF ENTITY\] or a private supporter with no formal connection to the \[TYPE
OF ENTITY\].
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.
As a Member of the \[GOVERNMENTAL BODY\] \[BOARD\], you are a public official
subject to the provisions of the Ethics Act. See, \[CITATIONS\].
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.
Confidential Advice, 22-519
April 11, 2022
Page 3
(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
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
Confidential Advice, 22-519
April 11, 2022
Page 4
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 Eth
(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.
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.
Conclusion:
In applying the above provisions of the Ethics Act to the instant matter, you are advised as
follows.
As noted above, as a Member of the \[GOVERNMENTAL BODY\] \[BOARD\], you are a
public official subject to the provisions of the Ethics Act. Section 1103(a) of the Ethics Act
imposes restrictions upon public officials and public employees in their public positions.
Therefore, Section 1103(a) of the Ethics Act imposes restrictions upon you in your public position
as a Member of the \[GOVERNMENTAL BODY\] \[BOARD\], rather than upon you in your private
capacity. Accordingly, Section 1103(a) of the Ethics Act would not prohibit you, in your private
capacity, from: (1) serving on the Board of the \[TYPE OF ENTITY\] while also serving as a
Member of the \[GOVERNMENTAL BODY\] \[BOARD\]; or (2) engaging in \[TYPE OF
ACTIVITIES\] for the \[TYPE OF ENTITY\] as either a member of the Board of the \[TYPE OF
ENTITY\] or a private supporter with no formal connection to the \[TYPE OF ENTITY\].
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.
Confidential Advice, 22-519
April 11, 2022
Page 5
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