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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 24, 2023
To the Requester:
Cheryl Lee S. Freedman
23-531
Dear Ms. Freedman:
This responds to your email received May 18, 2023, by which you requested an advisory
from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the
issues presented below:
Issues:
(1) Whether an individual serving as a borough council member would have a conflict of
interest pursuant to Section 1103(a) of the Public Official and Employee Ethics Act
(“Ethics Act”), 65 Pa.C.S. § 1103(a), with regard to participating in actions of the borough
council pertaining to the appointment of a borough tax collector if the individual’s husband
would be a candidate for such position.
Brief Answer: YES. Because the individual’s husband is a member of her “immediate
family” as that term is defined in the Ethics Act, the individual would have a conflict of
interest under Section 1103(a) of the Ethics Act with regard to participating in actions of
the borough council pertaining to the appointment of a borough tax collector where her
husband would be a candidate for such position.
(2) Whether the Ethics Act would impose prohibitions or restrictions upon the individual with
regard to participating in her husband’s election campaign if he would seek election as the
borough tax collector.
Brief Answer: The Ethics Act would not prohibit the individual, in her private capacity,
from participating in her husband’s campaign for election as the borough tax collector.
However, Section 1103(a) of the Ethics Act would prohibit the individual from using the
authority of her public position as a borough council member or confidential information
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May 24, 2023
Page 2
accessed or received as a result of being in her public position in furtherance of her
husband’s election as the borough tax collector.
Facts:
Yourequest an advisory from the Commission based upon the following submitted facts.
You are a Member of Council for the Borough of Pleasant Hills (“Borough”). On May 15,
2023, the Tax Collector for the Borough and West Jefferson Hills School District formally
announced her retirement effective mid-June 2023. As a result of the current Tax Collector’s
impending retirement, Borough Council needs to appoint a new Tax Collector for the Borough.
Your husband, who is a retired accountant withexperience as a comptroller and chief
financial officer, would like to seek appointment as the Borough Tax Collector. You state that if
your husband would be a candidate for the position of Borough Tax Collector, you would not be
involved in interviews, discussions, or votes regarding the position as it would concern your
husband.
Based upon the above submitted facts, the following questions are presented by your
advisory request:
(1) If your husband would be a candidate for the position of Borough Tax Collector,
whether you would have a conflict of interest with regard to participating in
interviews of, or discussions about, candidates other than your husband;
(2) Whether you would be permitted to participate in your husband’s election campaign
if he would seek election as the Borough Tax Collector; and
(3) Whether it would be permissible for the Borough Tax Collector’s office to be
located in the Borough municipal building.
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
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May 24, 2023
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(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
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.
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May 24, 2023
Page 4
“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.
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 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 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 of Borough Council, you are a public official subject to the provisions of the
Ethics Act. Your husband is a member of your “immediate family” as that term is defined in the
Ethics Act. As a Member of Borough Council, you generally would have a conflict of interest
under Section 1103(a) of the Ethics Act in matters that would financially impact you or your
husband.
Having established the above general principles, your specific questions shall now be
considered.
In response to your first question, you are advised as follows.
If your husband would be a candidate for the position of Borough Tax Collector, you would
have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in
actions of Borough Council pertaining to the appointment of a Borough Tax Collector. Your
conflict of interest would not be limited to actions related only to your husband’s potential
appointment to the position but would extend to include participating in interviews of, discussions
about, or votes on candidates for the position other than your husband. In each instance of a
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May 24, 2023
Page 5
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.
With respect to your second question, you are advised that the Ethics Act would not
prohibit you, in your private capacity, from participating in your husband’s election campaign if
he would seek election as the Borough Tax Collector. However, Section 1103(a) of the Ethics Act
would prohibit you from using the authority of your public position as a Borough Council Member
or confidential information accessed or received as a result of being in your public position in
furtherance of your husband’s election as the Borough Tax Collector.
Your third question cannot be addressed in this advisory because it does not relate to your
conduct as a public official. See, Section 1107(11) of the Ethics Act(providing that the
Commission shall “\[p\]rovide written advice to any person … upon their request with respect to
such person’s duties under \[the Ethic Act\]”). In the event your husband is appointed or electedto
the BoroughTax Collector position, then he could request an advisory on this issue as it involves
his conduct.
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