HomeMy WebLinkAbout22-524 Roering
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
July 13, 2022
To the Requester:
Eric Roering
22-524
Dear Eric Roering:
This responds to your correspondence dated June 14, 2022, by which you requested an
advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as
to the general issues presented below:
Issues:
1. As a Member of Council for Mount Joy Borough (Borough), would you have a conflict
of interest under Section 1103(a) of the Public Official and Employee Ethics Act (Ethics
Act), 65 Pa.C.S. § 1103(a), with regard to voting on a request by a non-profit corporation
for a permit to utilize a Borough park or street for an event or
for a variance to a noise ordinance to have music at an event, when you are a Member of
the Board of Directors of Voyage Mount Joy?
Brief Answer: You would not have a conflict of interest and would not violate Section
1103(a) of the Ethics Act by voting on a request by Voyage Mount Joy for a permit to
utilize a Borough park or street for an event or for a variance to a noise ordinance to have
music at an event unless: (1) you would be consciously aware of a private pecuniary
(financial) benefit for Voyage Mount Joy, which is a business with which you are
associated in your capacity as a Director; (2) your action(s) would constitute one or more
specific steps to attain that benefit; and (3) neither of the statutory exclusions to the
definition of conflict or conflict of interest as set forth in the Ethics Act, 65 Pa.C.S. §
1
1102, would be applicable.
1
Action that has a de minimis (insignificant) economic impact or that 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, does not constitute a conflict of interest.
Roering, 22-524
July 13, 2022
Page 2
2. Would you have a conflict of interest under Section 1103(a) of the Ethics Act with regard
to voting on a motion before Borough Council that would involve a non-profit organization
other than Voyage Mount Joy?
Brief Answer: Unless there would be a prohibited private pecuniary (financial) benefit for
you, a member of your immediate family, or a business with which you or a member of
your immediate family is associated, you would not have a conflict of interest under
Section 1103(a) of the Ethics Act with regard to voting on a motion before Borough
Council that would involve a non-profit organization other than Voyage Mount Joy.
Facts:
You request an advisory from the Commission based upon submitted facts, the material
portion of which may be fairly summarized as follows:
You are a Member of Borough Council. In a private capacity, you are a Member of the
local Chamber of Commerce. You are also a Member of the Board of Directors of a non-profit
arm of the Borough and the surrounding area and to attract visitors and host events for the
community.
Voyage Mount Joy does not solicit funds from the Borough or ask for financial assistance
from the Borough. At times, Voyage Mount Joy may wish to utilize a Borough park or street for
an event, which would require seeking a permit from Borough Council.
Several non-profit organizations other than Voyage Mount Joy may also have matters
before Borough Council. Some of these non-profit organizations receive funding and donations
from the Borough and are approved by Borough Council.
Based upon the above submitted facts, you pose the following questions:
1. Whether the Ethics Act would prohibit you from voting on a request by Voyage
Mount Joy for a permit to utilize a Borough park or street for an event or for a
variance to a noise ordinance to have music at an event; and
2. Whether the Ethics Act would prohibit you from voting on a motion before
Borough Council that would involve a non-profit organization other than Voyage
Mount Joy.
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
Roering, 22-524
July 13, 2022
Page 3
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
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
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July 13, 2022
Page 4
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.
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.
(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.
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 satisfied in the event of a voting
conflict.
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:
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.
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July 13, 2022
Page 5
Kistler, supra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics Act, a
public
himself, his family, or his business, and then must take action in the form of one or more specific
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 a Member of Borough Council, you are a public official subject to the provisions of the
Ethics Act. Voyage Mount Joy is a business with which you are associated in your capacity as a
Director. Under the submitted facts, the local Chamber of Commerce is not a business with which
you are associated. (It is noted that membership in the local Chamber of Commerce alone is not
sufficient to make it a business with which you are associated.) Pursuant to Section 1103(a) of the
Ethics Act, you generally would have a conflict of interest in matters before Borough Council 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, such as Voyage Mount Joy.
In response to your first question, you are advised that you would not have a conflict of
interest and would not violate Section 1103(a) of the Ethics Act by voting on a request by Voyage
Mount Joy for a permit to utilize a Borough park or street for an event or for a variance to a noise
ordinance to have music at an event unless: (1) you would be consciously aware of a private
pecuniary (financial) benefit for Voyage Mount Joy; (2) your action(s) would constitute one or
more specific steps to attain that benefit; and (3) neither of the statutory exclusions to the definition
of conflict or conflict of interest as set forth in the Ethics Act, 65 Pa.C.S. § 1102, would be
applicable.
In response to your second question, you are advised that unless there would be a prohibited
private pecuniary (financial) benefit for you, a member of your immediate family, or a business
with which you or a member of your immediate family is associated, you would not have a conflict
of interest under Section 1103(a) of the Ethics Act with regard to voting on a motion before
Borough Council that would involve a non-profit organization other than Voyage Mount Joy.
In each instance of a conflict of interest, you 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 satisfied in the event of a voting conflict.
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.
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July 13, 2022
Page 6
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,
Bridget K. Guilfoyle
Chief Counsel