HomeMy WebLinkAbout23-504 Kraus
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 26, 2023
23-504
To the Requester:
Kevin M. Kraus, Sheriff
County of Allegheny
Dear Mr. Kraus:
This responds to your letter of December 22, 2022, by which you requested an advisory
from the State Ethics Commission(“Commission”), seeking guidance as to the issue presented
below:
Issue:
Whether, pursuant to the Public Official and Employee Ethics Act (“Ethics Act”), 65
Pa.C.S. § 1101 et seq., an individual serving as a county sheriff would have a conflict of
interest in matters pertaining to his relationship and forthcoming marriage to an employee
of the county sheriff’s office.
Brief Answer: YES. While the Ethics Act would not prohibit your relationship and
upcoming marriage to an employee of the county sheriff’s office, you would generally have
a conflict of interest under Section 1103(a) of the Ethics Act in matters that would
financially impact your future spouse.
Facts:
You request an advisory from the Commission based upon the following submitted facts.
You were sworn into office as the Sheriff of Allegheny County on January 3, 2022, after
having worked for the Office of Allegheny County Sheriff (“Sheriff’s Office”) since March 31,
2014. As sheriff, you are responsible for the complete oversight, governance, and administration
Kraus, 23-504
January 26, 2023
Page 2
of the Sheriff’s Office. The Sheriff’s Office Chief Deputy, John Kearney, manages the daily
operations of the Sheriff’s Office across its three divisions and oversees the Sheriff’s Office’s 204
sworn and civilian employees, including Ms. Kristen Pivarnik, your fiancée.
Ms. Pivarnik has been employed by the Sheriff’s Office since May 2011. She currently
serves as the Accounting and Budget Manager, where she is responsible for preparing payroll,
initiating personnel actions, developing and monitoring the annual budget, preparing contractual
actions per the Collective Bargaining Agreements, projecting and analyzing overtime, reporting
account analysis, managing inventory control, and supporting administrative operations of the
Sheriff’s Office. Ms. Pivarnik also serves as the Sheriff’s Office liaison for audits, human
resources, FMLA, and workers’ compensation.
Your personal relationship with Ms. Pivarnik began in 2016 culminating in your
engagement on November 6, 2021.
You ask whether the Ethics Act would impose any prohibitions or restrictions upon you as
county sheriff with regard to your personal relationship and forthcoming marriage to a member of
the Sheriff’s Office.
Discussion:
It is initially noted that 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 of 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 of the material facts.
As a county sheriff, you are a public official/public employee as that term is defined in the
Ethics Act, and therefore you are subject to the provisions of the Ethics Act.
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
Kraus, 23-504
January 26, 2023
Page 3
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 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.
"Immediate family." A parent, spouse, child, brother or
sister.
65 Pa.C.S. § 1102.
Kraus, 23-504
January 26, 2023
Page 4
Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is
prohibited from using the authority of public office/public 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 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.
Conclusion:
In applying the above provisions of the Ethics Act to the instant matter, you are advised as
follows.
As a county sheriff, you are a public official/public employee subject to the provisions of
the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa. C.S. § 1101 et seq. As such,
Section 1103(a) of the Ethics Act prohibits you from using the authority of your public office or
confidential information received by holding such a public position for the private pecuniary
benefit of yourself or any member of your immediate family as this would constitute a conflict of
interest. Once you and Ms. Pivarnik are married, she would be considered a member of your
immediate family for which the conflict of interest provision would be applicable.
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.
Please note that 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. Specifically not addressed herein is the applicability of the
Allegheny County Accountability, Conduct and 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.
Kraus, 23-504
January 26, 2023
Page 5
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.
Sincerely,
Bridget K. Guilfoyle
Chief Counsel