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