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HomeMy WebLinkAbout23-502 Confidential 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 January 13, 2023 To the Requester: 23-502 This responds to your correspondence dated December 7, 2022, received December 13, 2022, by which you requested a confidential advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the issues presented below: Issues: (1) Whether the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1101 et seq. \] to be hired as a \[Political Subdivision\] employee to serve as a coordinator of \[Type of Work\] on a \[Type of Basis\]. Brief Answer: YES. The Ethics Act would permit the Individual to be hired as a \[Political Subdivision\] employee to provide services in the aforesaid capacity. (2) Whether the hiring of the Individual would be exempt from the restrictions and Kistler v. State Ethics Commission knowledge and skill relative to the . Brief Answer: The restrictions and requirements of Section 1103(f) of the Ethics Act would not be applicable where the Individual would be hired for a legitimate employment position and would not be contracting to provide services to the \[Political Subdivision\] as an independent contractor. Facts: Confidential Advice, 23-502 January 13, 2023 Page 2 You are the \[Political Subdivision\] Solicitor. You have been authorized by the Individual to request a confidential advisory from the Commission on his behalf. You have submitted facts that may be fairly summarized as follows. The \[Political Subdivision\] is a \[Type of Entity\]. The Individual is a Member of the \[Political Subdivision\] \[Certain Matters\], the \[Political Subdivision\] Board wishes to hire the Individual as a \[Political Subdivision\] employee to serve as a coordinator of \[Type of Work\] on a \[Type of Basis\]. The Individual would be paid at the rate of \[Amount\] per hour for services rendered to the \[Political Subdivision\] as an employee. The Individual would abstain from voting on the motion to hire him and set his compensation as a \[Political Subdivision\] employee. Based upon the above submitted facts, you pose the following questions: (1) Whether the Ethics Act would permit the Individual to be hired as a \[Political Subdivision\] employee to provide services as a coordinator of \[Type of Work\] to the \[Type of Facilities\]; (2) Whether the hiring of the Individual would be exempt from the requirements of Section Kistler, supra, \[Political \[Type of Facilities\]; and (3) Whether the rate of pay for the Individual must be approved by the governing body that established the \[Political Subdivision\]. 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 the 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 the 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. Confidential Advice, 23-502 January 13, 2023 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), (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, 23-502 January 13, 2023 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 /public employee is prohibited from using the authority of public office/employment or confidential information received by holding such a public position for the private pecuniary 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/employment 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. Section 1103(f) of the Ethics Act, pertaining to contracting, provides as follows: (f) Contract.--No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 Pa.C.S. § 1103(f). § 1102. Definitions Confidential Advice, 23-502 January 13, 2023 Page 5 "Contract." An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal or real property. The term shall not mean an agreement or arrangement between the State or political subdivision as one party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. 65 Pa.C.S. § 1102. Section 1103(f) does not operate to make contracting with the governmental body permissible where it is otherwise prohibited. Rather, where a public official/public employee, his spouse or child, or a business with which he, his spouse or child is associated, is otherwise appropriately contracting with the governmental body, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more, Section governmental body. Section 1103(f) of the Ethics Act also provides that the public official/public employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As a Member of the \[Political Subdivision\] Board, the Individual is a public official subject to the provisions of the Ethics Act. Section 1103(a) of the Ethics Act would not prohibit the Individual from being hired as a \[Political Subdivision\] employee while simultaneously serving as a \[Political Subdivision\] Board Member. See, \[Cites\]. However, as a \[Political Subdivision\] Board Member, the Individual would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in matters related to his hiring as a \[Political Subdivision\] employee, including the setting of his compensation as a \[Political Subdivision\] employee. If hired as a \[Political Subdivision\] employee, the Individual generally would have a conflict of interest in matters before the \[Political Subdivision\] Board pertaining to his employment. 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. You are advised that the restrictions and requirements of Section 1103(f) of the Ethics Act would not be applicable where the Individual would be hired for a legitimate employment position Confidential Advice, 23-502 January 13, 2023 Page 6 and would not be contracting to provide services to the \[Political Subdivision\] as an independent contractor. It is noted that to the extent the Individual would seek to contract to provide services to the \[Political Subdivision\] as an independent contractor, a problem may exist as to such contracting under the \[Statute\]. The \[Statute\] provides as follows: \[Text Redacted\] \[Cite\] Because the Ethics Commission does not have the statutory jurisdiction to interpret the \[Statute\], this Advice may not interpret the above-quoted provision of the \[Statute\]. Similarly, this Advice may not address your question as to whether the rate of pay for the Individual must be approved by the governing body that established the \[Political Subdivision\], as such question appears to involve an interpretation of the \[Statute\], and not the Ethics Act. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered, in that they do not involve an interpretation of 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, Bridget K. Guilfoyle Chief Counsel