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Home My WebLink About23-525 Furlong 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 May 5, 2023 To the Requester: Maryann D. Furlong 23-525 Dear Ms. Furlong: This responds to your letterdated April 10, 2023, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the issue 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 Tax Collector for the Borough of Chester Heights (“Borough”) with regard to providing municipal managerial consulting services to the Borough. Brief Answer: The Ethics Act would not prohibit the individual, in her private capacity, from providing municipal managerial consulting services to the Borough. However, Section 1103(a) of the Ethics Act (pertaining to conflict of interest) would prohibit the individual from using the authority of her public position as the Borough Tax Collector or confidential information accessed or received as a result of being in her public position in furtherance of her provision of such consulting services. Facts: You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. You are the elected Tax Collector for the Borough. You have held the office of Borough Tax Collector for approximately twenty-four years. During twelve of those years you were Furlong, 23-525 May 5, 2023 Page 2 employed with Chadds Ford Township (“Township”), serving at various times as Secretary, Treasurer, and Manager. In May 2022, you retired from your employment with the Township. You plan to use your experience as the Township Manager to offer consulting services to local municipalities. The Borough currently does not have a Borough Manager. There is no Borough personnel manual, job descriptions are not accurate, and two of the Borough’s three office employees are new to municipal work and need initial training and oversight. Members of Borough Council have proposed that you provide consulting services to the Borough. A Statement of Work for a municipal managerial consultant has been provided to you by the Vice Chair of Borough Council. As a municipal managerial consultant, you would assist Borough Council in identifying all functions of the Borough office, drafting job descriptions, and creating a personnel manual. You would also identify training opportunities for staff and provide guidance on general office practices and requirements. Per the Statement of Work, you would be hired to provide services for six weeks at a pay rate of $50 per hour for a maximum of 80 hours. You express your belief that the proposed consulting services would not interfere or conflict with your performance of your duties as the Borough Tax Collector. You state that the Borough Treasurer is the sole staff member who handles Borough funds on a daily basis and that you would not have any interaction with that process. You seek guidance as to whether the Ethics Act would impose any prohibitions or restrictions upon you with regard to providing municipal managerial consulting services to the Borough. 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) 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). Furlong, 23-525 May 5, 2023 Page 3 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. “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, restricts public officials and public employees in their public capacities, not their private capacities. 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” or 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. In each instance of a conflict of interest, the 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. Furlong, 23-525 May 5, 2023 Page 4 It is administratively noted that Section 1404 of the Borough Code provides: “Elected and appointed borough officials and borough employees are restricted from an interest in borough contracts and purchases to the extent provided in 65 Pa.C.S. Ch. 11 (relating to ethics standards and financial disclosure).” 8 Pa.C.S. § 1404. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As the Borough Tax Collector, you are a public official subject to the provisions of the Ethics Act.Section 1103(a) of the Ethics Act would not prohibit you, in your private capacity, from providing municipal managerial consulting services to the Borough. However, Section 1103(a) of the Ethics Act would prohibit you from using the authority of your public position as the Borough Tax Collector or confidential information accessed or received as a result of being in your public position in furtherance of your provision of such consulting services. 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