The URL can be used to link to this page

Home My WebLink About23-514 ConfidentialPHONE: 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 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov ADVICE OF COUNSEL March 6, 2023 23-514 This responds to your letter dated January 26, 2023, received February 7, 2023, 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, pursuant to Section 1103(a) of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1103(a), a [Political Subdivision] [Official] would have a conflict of interest with regard to voting to appoint himself to a volunteer board of a [Type of Nonprofit Organization] or [Political Subdivision] [Entity] or voting to appoint himself to the position of chair or vice chair of a board on which he serves. Brief Answer: A [Political Subdivision] [Official] would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting to appoint himself to a position — such as a position on a volunteer board of a [Type of Nonprofit Organization] or [Political Subdivision] [Entity] or the position of chair or vice chair of a board on which he serves — unless either: (1) he would receive no compensation for serving in such position; or (2) any compensation that he would receive for serving in such position would be de minimis (insignificant). (2) Whether a [Political Subdivision] [Official] would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting in the affirmative to accept his resignation from a board on which he serves. Brief Answer: A [Political Subdivision] [Official] would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting in the affirmative to accept his resignation from a board on which he serves because the requisite element of a private pecuniary benefit would be lacking. Confidential Advice, 23-514 March 6, 2023 Page 2 Facts: You have been authorized by the [Political Subdivision] [Officials] to request a confidential advisory from the Commission on their behalf. You have submitted facts that may be fairly summarized as follows. The [Political Subdivision] [Governmental Body] consists of [Number] Members. As part of its ordinary and regular duties and functions, the [Political Subdivision] [Governmental Body] makes appointments to various boards and committees. The [Political Subdivision] [Governmental Body] additionally holds reorganizational meetings for the various boards and meetings in which various officers are selected. Based upon the above submitted facts, you pose the following questions: (1) Whether a [Political Subdivision] [Official] would have a conflict of interest with regard to voting to appoint himself to a volunteer board of a [Type of Nonprofit Organization] or [Political Subdivision] [Entity]; (2) Whether a [Political Subdivision] [Official] would have a conflict of interest with regard to voting to appoint himself to the position of chair or vice chair of a board on which he serves; and (3) Whether a [Political Subdivision] [Official] would have a conflict of interest with regard to voting in the affirmative to accept his resignation from a Board on which he serves. 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. An advisory opinion only affords a defense to the extent the requester has truthfully disclosed all material facts. In issuing an advisory opinion, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to acts 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). 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 Confidential Advice, 23-514 March 6, 2023 Page 3 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), 0). 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. "De minimis economic impact." An economic consequence which has an insignificant effect. Confidential Advice, 23-514 March 6, 2023 Page 4 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, apublic 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. 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 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. It is noted that the above statutory definition of the term "conflict" or "conflict of interest" contains, in pertinent part, an exclusion referred to herein as the "de minimis exclusion." The de minimis exclusion precludes a finding of conflict of interest as to an action having a de minimis (insignificant) economic impact. Thus, when a matter that would otherwise constitute a conflict of interest under the Ethics Act would have an insignificant economic impact, a conflict would not exist and Section 1103(a) of the Ethics Act would not be implicated. See, Kolb, Order 1322; Schweinsburg, Order 900. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. A [Political Subdivision] [Official] is a public official subject to the provisions of the Ethics Act. A [Political Subdivision] [Official] would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting to appoint himself to a position — such as a position on a volunteer board of a [Type of Nonprofit Organization] or [Political Subdivision] [Entity] or the position of chair or vice chair of a board on which he serves — unless either: (1) he would receive no compensation for serving in such position; or (2) any compensation that he would receive for serving in such position would be de minimis. Cf., Williams, Advice 11-561; Sander, Advice 10- 520. A [Political Subdivision] [Official] would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting in the affirmative to accept his resignation from a board on which he serves because the requisite element of a private pecuniary benefit would be lacking. 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 Confidential Advice, 23-514 March 6, 2023 Page 5 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 of Counsel 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