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HomeMy WebLinkAbout23-528 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 May 11, 2023 To the Requester: 23-528 This responds to your letter dated April 28, 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) ofthe Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), a member of a \[Political Subdivision Governing Body\] would have a conflict of interest with regard to participating in discussions, votes, or other actions of the \[Political Subdivision Governing Body\] pertaining to the hiring of a \[Political Subdivision Employee\], where one of the applicants for the position of \[Political Subdivision Employee\] is an individual who the member of the \[Political Subdivision Governing Body\] has been dating for an extended period of time. Brief Answer: NO. Because the individual is not a member of the \[Political Subdivision Governing Body\] member’s “immediate family” as that term is defined in the Ethics Act, the fact that the individual is an applicant for the position of \[Political Subdivision Employee\] would not be a basis for the \[Political Subdivision Governing Body\] member to have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in discussions, votes, or other actions of the \[Political Subdivision Governing Body\] pertaining to the hiring of a \[Political Subdivision Employee\]. Facts: You request a confidential advisory from the Commission based upon the following submitted facts. Confidential Advice, 23-528 May 11, 2023 Page 2 You are a Member of the \[Governing Body\] of the \[Political Subdivision\], located in \[County\], Pennsylvania. As a result of the current \[Political Subdivision Employee’s\] impending retirement, the \[Political Subdivision\]has received several applications for the position of \[Political Subdivision Employee\]. One of the applicants for the position is an individual (“the Individual”) who you have been dating for an extended period of time. You and the Individual have separate households, and you and the Individual do not have any children together. You and the Individual do not share ownership of any real or personal property, have any financial interests in common, or have any shared debts, bank accounts, or assets. You seek guidance as to whether the Ethics Act would impose any prohibitions or restrictions upon you with regard to participating in actions of the \[Political Subdivision Governing Body\] pertaining to the hiring of a \[Political Subdivision Employee\], including but not limited to: (1) engaging in discussions with regard to the term of office, salary, and benefits for the position; (2) interviewing candidates for the position; and (3) voting on the hiring of a candidate for the position. 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 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 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 Confidential Advice, 23-528 May 11, 2023 Page 3 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), 1103(j). 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. “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 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, Confidential Advice, 23-528 May 11, 2023 Page 4 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 Member ofthe \[Political Subdivision Governing Body\], 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 \[Political Subdivision Governing Body\] 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. The Individual is not a member of your “immediate family” as that term is defined in the Ethics Act. Since the Individual is not a member of your immediate family, the fact that the Individual is an applicant for the position of \[Political Subdivision Employee\] would not be a basis for you to have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in actions of the \[Political Subdivision Governing Body\] pertaining to the hiring of a \[Political Subdivision Employee\]. Accordingly, Section 1103(a) of the Ethics Act would not prohibit you from engaging in discussions regarding the term of office, salary, and benefits for the position of \[Political Subdivision Employee\], interviewing candidates for the position, or voting on the hiring of a candidate for the position. However, if the Individual would be hired as the \[Political Subdivision Employee\] and would subsequently become your spouse, you would then generally have a conflict of interest in matters before the \[Political Subdivision Governing Body\] pertaining to the Individual’s employment as the \[Political Subdivision Employee\]. 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. 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 Confidential Advice, 23-528 May 11, 2023 Page 5 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