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Home My WebLink About23-521 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 April 20, 2023 To the Requester: 23-521 This responds to your letters dated March 6, 2023, and March 21, 2023, by which you requested a confidential advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to theissue presented below: Issue: Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon an individual serving as the \[Position 1\] of a \[Political Subdivision\] with regard to the \[Political Subdivision’s\] hiring of the individual’s spouse as either a \[Position 2\] or a \[Position 3\]. Brief Answer: Given that \[Section A\] of the \[Statute\] provides that \[Position 2s\] shall be chosen by \[Action of the Political Subdivision’s Governing Body\] upon nomination by the \[Position 1\], and that a \[Position 3\] would be answerable to the \[Position 1\], it would appear to be impossible, as a practical matter, for the individual’s spouse to be hired as either a \[Position 2\] or a\[Position 3\] without the individual running afoul of Section 1103(a) of the Ethics Act (pertaining to conflict of interest). Facts: Youhave been authorized by \[Individual 1\] to request a confidential advisory from the Commission on his behalf. You have submitted facts that may be fairly summarized as follows. \[Individual 1\] is the \[Position 1\] of the \[Political Subdivision\]. The \[Political Subdivision\] has commenced a search for potential candidates to fill a\[Type of Position\]. The\[Political Subdivision\] could fill the \[Type of Position\] by hiring either a \[Position 2\] pursuant to \[Section A\]of the \[Statute\], or a \[Position 3\] pursuant to \[SectionB\] of the \[Statute\]. Confidential Advice, 23-521 April 20, 2023 Page 2 You state that a \[Position 2\] would be a \[Type of Officer\] of the \[Political Subdivision\] and would report to the \[Political Subdivision’s Governing Body\]. You further state that a \[Position 3\] would be answerable to the \[Position 1\]. It is noted that \[Section A\] of the \[Statute\] provides as follows: \[Statutory Provision Regarding Position 2s\] \[Individual 2\] is \[Individual 1’s\]’s spouse. You state that \[Individual 2\]is qualified for the \[Type of Position\]and holds all of the \[Official Documents\]required for the \[Type of Position\]. The question that is presented by your advisory request is whether the hiring of \[Individual 2\] as either a \[Position 2\] or a \[Position 3\] would cause \[Individual 1\] to run afoul of any provisions of the Ethics Act. 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. Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities (a) Conflict of interest. -- No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). 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 Confidential Advice, 23-521 April 20, 2023 Page 3 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. Section 1103(a) of the Ethics Act, pertaining to conflict of interest, imposes restrictions upon public officials and public employees, and not their immediate family members or businesses. Subject to the statutory exclusions to the Ethics Act’s definition of the term “conflict” or “conflict of interest,” 65 Pa.C.S. § 1102, a public official/public employeeis 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 employeehimself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. In each instance of a conflict of interest, a public official/public employee would be required to abstain from participation. The abstention requirement would extend 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. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As the \[Position 1\]of the \[Political Subdivision\], \[Individual 1\]is a public official/public employee subject to the provisions of the Ethics Act. \[Individual 1’s\] spouse, \[Individual 2\], is a member of \[Individual 1’s\] “immediate family” as that term is defined in the Ethics Act. As the \[Political Subdivision\] \[Position 1\], \[Individual 1\]generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters that would financially impact him or his spouse. Given that on its face, \[Section A\] of the \[Statute\] would require \[Individual 1\], as the \[Political Subdivision\] \[Position 1\], to nominate his spouse in order for her to be hired as a \[Position 2\], and that his spouse would be answerable to him if she would be hired as a \[Position 3\], it would appear to be impossible, as a practical matter, for \[Individual 1’s\]spouse to be hired as either a \[Position 2\] or a \[Position 3\] without \[Individual 1\]running afoul of Section 1103(a) of the Ethics Act. Confidential Advice, 23-521 April 20, 2023 Page 4 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 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. Respectfully, Bridget K. Guilfoyle Chief Counsel