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PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806
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HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL
August 1, 2022
To the Requester:
22-527
This responds to your correspondence dated June 23, 2022, by which you requested a
confidential advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking
guidance as to the general issues presented below:
Issues:
1. Would the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et
seq., impose prohibitions or restrictions upontwo individuals serving as Members of the
\[Governing Body\]for a \[Political Subdivision\]or an individual serving as the \[Political
Subdivision\] \[Position\], all of whom have been invited to attend an \[Event\] in \[Country\],
with regard to accepting an offer by an \[Entity\] to subsidize the costs of attending the
\[Event\], where: (1) the \[Entity\] receives an annual appropriation from the \[Political
Subdivision\]; and (2) the\[Entity\]proposes to subsidize the costs through its \[Type of
Efforts\]?
Brief Answer: As to each individual (i.e., either of the two \[Political Subdivision\]
\[Governing Body\]Members or the \[Political Subdivision\] \[Position\]), the Ethics Act would
not prohibit the individual from accepting the \[Entity’s\]offer to subsidize the costs of
attending the \[Event\] subject to the condition thatthere would be no understanding that the
vote, official action or judgment of the individual would be influenced thereby in
contravention of Sections 1103(b)-(c) of the Ethics Act.
2. Where an individual (i.e., either of the two \[Political Subdivision\]\[Governing Body\]
Members or the \[Political Subdivision\]\[Position\]) would accept the \[Entity’s\]offer to
subsidize the costs of attending the \[Event\], would the individual have a conflict of interest
under Section 1103(a) of the Ethics Act with regard to participating in matters pertaining
to the preparation or approval of an annual \[Political Subdivision\]budget that would
include an appropriation to the \[Entity\]?
Confidential Advice, 22-527
August 1, 2022
Page 2
Brief Answer: An individual who would accept the \[Entity\]’s offer would have a conflict
of interest and would violate Section 1103(a) of the Ethics Act by participating in matters
involving the preparation or approval of an annual \[Political Subdivision\] budget that
would include an appropriation to the \[Entity\] only if: (1) the individual would be
consciously aware of a private pecuniary benefit for the individual, an immediate family
member, or a business with which the individual or an immediate family member is
associated; (2) the individual’s 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.
Facts:
As Solicitor for the \[Political Subdivision\], which is located in \[County\], Pennsylvania,
you have been authorized by \[Individual 1\], \[Individual 2\], and \[Individual 3\] to request a
confidential advisory from the Commission on their behalf. You have submitted facts, the material
portion of which may be fairly summarized as follows.
\[Individual 1\] and \[Individual 2\] were sworn into office as Members of the \[Political
Subdivision\] \[Governing Body\] on \[Date\]. \[Individual 3\] is the \[Political Subdivision\] \[Position\].
\[Individual 3\] reports to the \[Political Subdivision\] \[Governing Body\], and her responsibilities
include preparing the annual \[Political Subdivision\] budget and implementing and controlling
spending consistent with the annual \[Political Subdivision\] budget.
In \[Year\], the \[Political Subdivision\] became the first \[Type of Political Subdivision\]. The
\[Entity\] is a non-profit organization that files a \[Form\] with the \[Governmental Agency\]. A portion
of the \[Entity’s\] revenues comes from an annual appropriation from the \[Political Subdivision\]. In
\[Month, Year\], the \[Political Subdivision\] \[Governing Body\] adopted a \[Political Subdivision\]
budget for \[Year\] that included a \[Dollar Amount\] appropriation to the \[Entity\].
\[Individual 1\], \[Individual 2\], and \[Individual 3\]have been invited to attend an \[Event\] in
\[City\], \[Country\], in \[Month, Year\]or \[Month, Year\]. The purpose of the \[Event\] would be
educational, and the \[Event\] would include \[certain activities\].The \[Entity\]has offered to make a
contribution to subsidize the costs of \[Individual 1’s\], \[Individual 2’s\], and \[Individual 3’s\]
attendance at the \[Event\]. For each attendee, the \[Entity\]proposes to cover costsof approximately
\[Dollar Amount\]for roundtrip airfare and \[Dollar Amount\]per day for food, lodging, and ground
transportation. The \[Entity\]proposes to subsidize these costs through its \[Type of Efforts\].
Because \[Individual 1\] and \[Individual 2\]were not sworn into office as \[Political
Subdivision\] \[Governing Body\]Members until \[Month, Year\], they were not involved in the
approval of the \[Political Subdivision\]budget for \[Year\]that included an appropriation of \[Dollar
Amount\] tothe \[Entity\]. It is likely that the \[Political Subdivision\]\[Governing Body\]will consider
making an appropriation to the \[Entity\]as part of \[Political Subdivision\]budgets for\[Year\]and
later years.
Based upon the above submitted facts, the following questions are posed by your advisory
request:
Confidential Advice, 22-527
August 1, 2022
Page 3
1. Would the Ethics Act prohibit \[Individual 1\], \[Individual 2\], or \[Individual 3\]from
accepting the \[Entity’s\] offer to subsidize the costs of attending the \[Event\];
2. If \[Individual 3\] would accept the \[Entity’s\] offer to subsidize the costs of attending
the \[Event\], would she have a conflict of interest with regard to preparing an annual
\[Political Subdivision\] budget for \[Year\]or a later year that would include an
appropriation to the \[Entity\];
3. Would \[Individual 3\]violate the Ethics Act if she would not use vacation time to
attend the \[Event\] but would instead treat hertime spent attending the \[Event\] as
work-related; and
4. If \[Individual 1\] and \[Individual 2\] would accept the \[Entity’s\] offer to subsidize
the costs of attending the \[Event\], would they have a conflict of interest with regard
to considering and voting on an annual \[Political Subdivision\] budget for \[Year\] or
a later year that would include an appropriation to the \[Entity\], and if so, would
their recusal from such matter be sufficient to avoid a violation of the Ethics Act?
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
Confidential Advice,22-527
August 1, 2022
Page 4
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
performance of duties and responsibilities unique to a particular
public office or position of public employment.
“De minimis economic impact.”An economic
consequence which has an insignificant effect.
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 employeeis 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
Confidential Advice, 22-527
August 1, 2022
Page 5
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.
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.
One of the exclusions to the statutory definition of “conflict” or “conflict of interest,”
referred to herein as the “de minimis exclusion,” precludes a finding of conflict of interest as to an
action having a de minimis (insignificant) economic impact.Thus, when a matter that would
otherwise constitute a conflict of interest under the Ethics Act would have an insignificant
economic impact, a conflict would not exist, and Section 1103(a) of the Ethics Act would not be
implicated. See, Kolb, Order 1322; Schweinsburg, Order 900. The Commission has determined
the applicability of the de minimis exclusion on acase-by-case basis, considering all relevant
circumstances.In the past, the Commission has found amounts up to approximately $ 1,200.00 to
be de minimis.
Per Commission precedent, the Ethics, Act does not prohibit a public official/public
employee from accepting “no-strings-attached” gifts, transportation, lodging or hospitality.Cf.,
Cooper, Opinion 92-009.
Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer or
give to a public official/public employee anything of monetary value and no public official/public
employee shall solicit or accept anything of monetary value based upon the understanding that the
vote, official action, or judgment of the public official/public employee would be influenced
thereby.
Conclusion:
Confidential Advice, 22-527
August 1, 2022
Page 6
In applying the above provisions of the Ethics Act to the instant matter, you are advised as
follows.
As Members of the \[Political Subdivision\] \[Governing Body\], \[Individual 1\]and
\[Individual 2\]are public officials subject to the provisions of the Ethics Act. As the \[Political
Subdivision\] \[Position\], \[Individual 3\]is a public official/public employee subject to the provisions
of the Ethics Act.
As to each individual (i.e., \[Individual 1\], \[Individual 2\], or \[Individual 3\]), the Ethics Act
would not prohibit the individual from accepting the \[Entity’s\]offer to subsidize the costs of
attending the \[Event\] subject to the condition that there would be no understanding that the vote,
official action or judgment of the individual would be influenced thereby in contravention of
Sections 1103(b)-(c) of the Ethics Act. Cf., \[Citation\].
Unless the de minimis exclusion would be applicable, Section 1103(a) of the Ethics Act
would prohibit \[Individual 3\]from receiving wages from the \[Political Subdivision\] for time spent
attending the \[Event\], as her attendance at the \[Event\] would not be related to her duties as the
\[Political Subdivision\] \[Position\] or other \[Political Subdivision\] business.
Where \[Individual 3\]would accept the \[Entity’s\]offer to subsidize the costs of attending
the \[Event\], she would have a conflict of interest and would violate Section 1103(a) of the Ethics
Act by preparing an annual \[Political Subdivision\]budget for \[Year\]or a later year that would
include an appropriation to the \[Entity\] only if: (1) she would be consciously aware of a private
pecuniary benefit for herself, amember of her immediate family, or a business with which she or
a member of her immediate family is associated; (2) heraction(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.
As to each \[Political Subdivision\]\[Governing Body\]Member (i.e., \[Individual 1\]and
\[Individual 2\]), where the \[Political Subdivision\] \[Governing Body\]Member would accept the
\[Entity’s\]offer to subsidize the costs of attending the \[Event\], the \[Political Subdivision\]
\[Governing Body\]Member would have a conflict of interest and would violate Section 1103(a) of
the Ethics Act by considering and voting on an annual \[Political Subdivision\]budget for \[Year\]or
a later year that would include an appropriation to the \[Entity\] only if: (1) the \[Political
Subdivision\] \[Governing Body\]Member would be consciously aware of a private pecuniary
benefit for the \[Political Subdivision\]\[Governing Body\]Member, an immediate family member,
or a business with which the \[Political Subdivision\]\[Governing Body\]Member or an immediate
family member is associated; (2) the \[Political Subdivision\]\[Governing Body\]Member’s 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 each instance of a conflict of interest, the individual with the conflict of interest—that is,
\[Individual 1\]or \[Individual 2\]as a \[Political Subdivision\]\[Governing Body\]Member or
\[Individual 3\]as the \[Political Subdivision\] \[Position\]—would be required to abstain from
Confidential Advice, 22-527
August 1, 2022
Page 7
participation. In each instance of a voting conflict, \[Individual 1\]or \[Individual 2\] would be
required to abstain from 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.
This letter is a public record and will be made available assuch.
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 scheduledand a formal Opinion will be issued by the Commission.
Any such appeal must be in writing and must be actually receivedat 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