HomeMy WebLinkAbout22-551 Yeager
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
December 13, 2022
To the Requester:
Daniel G. Yeager
22-551
Dear Mr. Yeager:
This responds to your submission received November 7, 2022, by which you requested an
advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as
to the issue presented below:
Issue:
Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et
seq., would impose prohibitions or restrictions upon an individual serving as the Business
Manager of the Bradford Sanitary Authority (“Sanitary Authority”), who is also a Member
of the Board of Trustees and the Treasurer of the Bradford Area Public Library, with regard
to seeking election as a Member of Council for the City of Bradford (“City”) or as the City
Mayor.
Brief Answer: NO. The Ethics Act would not prohibit the individual from seeking election
as aMember of City Council oras theCity Mayor. However, if elected as a Member of
City Council or as the City Mayor, in either such public position the individual would
generally have a conflict of interest under Section 1103(a) of the Ethics Act in matters that
would financially impact the Bradford Area Public Library, which is a business with which
the individual is associated in his capacities as a Trustee and the Treasurer.
Facts:
You request an advisory from the Commission based upon the following submitted facts.
You are employed as the Business Manager of the Sanitary Authority. You are also a
Member of the Board of Trustees and the Treasurer of the Bradford Area Public Library, which is
Yeager, 22-551
December 13, 2022
Page 2
registered with the Pennsylvania Department of State as a domestic nonprofit corporation. You
have submitted a copy of the Bylaws of the Bradford Area Public Library, which document is
incorporated herein by reference.
You ask whether the Ethics Act would impose any prohibitions or restrictions upon you
with regard to seeking election as a Member of City Council or as the City Mayor in 2023.
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
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.
Yeager, 22-551
December 13, 2022
Page 3
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.
“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.
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” or 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 definition of the term “business” as set forth in the Ethics Act includes a non-profit
corporation. Rendell v. State Ethics Commission, 603 Pa. 292, 983 A.2d 708 (2009).
Yeager, 22-551
December 13, 2022
Page 4
The use of authority of office is not limited merely to voting but extends to any use of
authority of officeincluding, 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.
Conclusion:
In applying the above provisions of the Ethics Act to the instant matter, you are advised as
follows.
As the submitted facts do not include a position description for your position as the
Business Manager of the Sanitary Authority, this Advice assumes, without deciding, that in such
position, you are a public employee subject to the provisions of the Ethics Act.The Bradford Area
Public Library is a business with which you are associated in your capacities as a Trustee and the
Treasurer. Cf., Pauxtis, Advice 98-537.
You are advised that the Ethics Act would not prohibit you from seeking election as a
Member of City Council or as the City Mayor.
With regard to the question of simultaneous service, it is initially noted that the General
Assembly has the constitutional power to declare by law which offices are incompatible. Pa.
Const. Art. 6, § 2. There does not appear to be any statutorily-declared incompatibility that would
preclude you from simultaneously serving as the Business Manager of the Sanitary Authority and
either a Member of City Council or the City Mayor.
Turning to the question of conflict of interest, where simultaneous service would place the
public official/public employee in a continual state of conflict, such as where in one position he
would be accounting to himself in another position on a continual basis, there would be an inherent
conflict. (See, McCain, Opinion 02-009). Where an inherent conflict would exist, it would appear
to be impossible, as a practical matter, for the public official/public employee to function in the
conflicting positions without running afoul of Section 1103(a) of the Ethics Act.
Absent a statutorily-declared incompatibility or an inherent conflict under Section 1103(a),
the Ethics Act would not preclude an individual from simultaneously serving in more than one
position. However, in each instance of a conflict of interest, the individual 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.
In this case, based upon the facts that have been submitted, theredoes not appear to be an
inherent conflict that would preclude you from simultaneously serving as the Business Manager
of the Sanitary Authority and either a Member of City Council or the City Mayor. Consequently,
such simultaneous service would be permitted within the parameters of Sections 1103(a) and
1103(j) of the Ethics Act. It is noted that as either a Member of City Council or the City Mayor,
Yeager, 22-551
December 13, 2022
Page 5
you would generally have a conflict of interest under Section 1103(a) of the Ethics Act in matters
that would financially impact the Bradford Area Public Library.
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 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,
Martin W. Harter
Acting Chief Counsel