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PHONE: 717-783-1610
TOLL FREE: 1-800-932-0936
To the Requester:
STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
February 6, 2023
FACSIMILE: 717-787-0806
WEBSITE: www.ethics.pa.gov
23-509
This responds to your correspondence dated January 10, 2023, received January 20, 2023,
by which you requested a confidential advisory from the Pennsylvania State Ethics Commission
("Commission"), seeking guidance as to the issue presented below.
Issue:
Whether, pursuant to Section 1103(a) of the Public Official and Employee Ethics Act
("Ethics Act"), 65 Pa,C.S. § 1103(a), an individual serving as a Member and Chairman of
the Board of the [Authority], which owns the [Facility], would have a conflict of interest
with regard to participating in discussions, votes, or other actions of the Authority Board
pertaining to a tenant of the [Facility Structure], where in a private capacity, the individual
[Has a Business Relationship] with the tenant.
Brief Answer: Section 1103(a) of the Ethics Act, which restricts public official s/public
employees in their public capacities and not their private capacities, does not prohibit the
individual from having business relationships, such as his business relationship with the
tenant of the [Facility Structure]. However, in his public capacity as a Member and
Chairman of the Authority Board, the individual would have a conflict of interest and
would violate Section 1103(a) of the Ethics Act by participating in discussions, votes, or
other actions of the Authority Board pertaining to the tenant if: (1) the individual would be
consciously aware of a private pecuniary (financial) benefit for himself; (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. I
I Action that has a de ininimis (insignificant) economic impact or that affects to the same degree a class consisting of flic general public or a
subclass consisting of all industry, occupation or other group which includes the public official or public employee, a member ofifis immediate
family, or a business with which lie or a member of Ilis immediate family is associated, does not constitute a conflict of interest.
Confidential Advice, 23-509
February 6, 2023
Page 2
Facts:
You request a confidential advisory from the Commission based upon submitted facts that
may be fairly summarized as follows.
You are a Member and Chairman of the Board of the Authority, which owns the [Facility].
The Authority Board makes basic fiscal decisions and acts on various matters related to [Operating
the Facility].
[The Entity], which is not related to you in any way, is a tenant of the [Facility Structure].
You [Have a Business Relationship] with [the Entity].
The question that is presented by your advisory request is whether, in your capacity as a
Member and Chairman of the Authority Board, you would have a conflict of interest with regard
to participating in discussions, votes, or other actions of the Authority Board pertaining to [the
Entity] .
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 11030) 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.
0) 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
Confidential Advice, 23-509
February 6, 2023
Page 3
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), I1030).
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.
Confidential Advice, 23-509
February 6, 2023
Page 4
"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.
Section 1103(a) of the Ethics Act (pertaining to conflict of interest), which restricts public
officials/public employees in their public capacities and not their private capacities, does not
prohibit public officials/public employees from having outside business activities or relationships.
However, 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 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 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. .luliante, 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 11030) of the Ethics Act would be applicable. Additionally, the disclosure
requirements of Section 11030) 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.
Conclusion:
Confidential Advice, 23-509
February 6, 2023
Page 5
In applying the above provisions of the Ethics Act to the instant matter, you are advised as
follows.
As a Member and Chairman of the Authority Board, you are a public official subject to the
provisions of the Ethics Act. Pursuant to Section 1103 (a) of the Ethics Act, you generally would
have a conflict of interest in matters before the Authority Board that would financially impact you,
a member of your immediate family, or a business with which you or a member of your immediate
family is associated.
Under the submitted facts, [the Entity] is not a business with which you are associated for
purposes of the Ethics Act. Your business relationship with [the Entity] would not in and of itself
form the basis of a conflict of interest for you in matters before the Authority Board that would
involve [the Entity].
You are advised that as a Member and Chairman of the Authority Board, you would have
a conflict of interest and would violate Section 1103(a) of the Ethics Act by participating in
discussions, votes, or other actions of the Authority Board pertaining to [the Entity] if: (1) you
would be consciously aware of a private pecuniary (financial) benefit for yourself; (2) your
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, you would be required to abstain from participation,
which would include voting unless one of the statutory exceptions of Section 11030) of the Ethics
Act would be applicable. Additionally, the disclosure requirements of Section 11030) 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 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
Confidential Advice, 23-509
February 6, 2023
Page 6
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