Loading...
HomeMy WebLinkAbout23-544 Kinder 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 July 31, 2023 To the Requester: The Honorable Jaime Kinder Mayor, City of Meadville 23-544 Dear Mayor Kinder: This responds to your letter received July 10, 2023, by which you requested an advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the general issues presented below: Issues: (1) Whether, as you would have a conflict of interest under Section 1103(a) of the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1103(a), with regard to participating in matters before City Council , Crawford County United, when you are employed as the Member Organizer for PA United. Brief Answer: You would not have a conflict of interest and would not violate Section 1103(a) of the Ethics Act by participating in matters before City Council related to issues of concern to PA United or Crawford County United unless: (1) you would be consciously aware of a private pecuniary benefit for yourself or PA United, which is a business with which you are associated in your capacity as an employee; (2) your action(s) would constitute one or more specific steps to attain that benefit; and (3) neither of the statutory 1 Act, 65 Pa.C.S. § 1102, would be applicable. 1 Action that has a de minimis (insignificant) economic impact or that 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, does not constitute a conflict of interest. Kinder, 23-544 July 31, 2023 Page 2 (2) Whether Section 1103(a) of the Ethics Act would prohibit you from interacting with City officials and staff on behalf of PA United or Crawford County United in your private capacity as the Member Organizer for PA United. Brief Answer: No. Section 1103(a) of the Ethics Act, which imposes restrictions upon you in your capacity as a public official and not in your private capacity, would not prohibit you from interacting with City officials and staff on behalf of PA United or Crawford County United in your private capacity as the Member Organizer for PA United. Facts: You request an advisory from the Commission based on submitted facts that may be fairly summarized as follows. On November 3, 2021, you were elected as the Mayor of the City, which is located in Crawford County , Pennsylvania. Your term of office ends on December 31, 2025. In February 2023, you began employment as the Member Organizer for PA United, which is a nonprofit advocacy organization. PA United works to connect communities of color with white working-class communities in counties across western Pennsylvania around issues of equitable development with environmental protections, increasing the minimum wage, criminal justice reform, and support for workers organizing in unions. You have submitted a copy of a job description for the position of Member Organizer, which document is incorporated herein by reference. Per the job description, the Member Organizer is responsible for working with the Regional Organizer to build the membership of Crawford County United, a local chapter of dues-paying members which works on both issue and election campaigns. You seek guidance as to whether the Ethics Act would impose any prohibitions or restrictions upon you, either as the City Mayor or as the Member Organizer for PA United, with regard to participating legislative or policy concerns. In particular, the following questions are presented by your advisory request: (1) Whether, as the Member Organizer for PA United, you would be permitted to lobby the County government and municipal governments about legislation and policies that would benefit large groups of poor and working people in the County; (2) Whether, as the City Mayor, you would be required to excuse yourself from a session of City Council whenever an issue which PA United or Crawford County United is actively lobbying for or against is going to be discussed but not voted on; Kinder, 23-544 July 31, 2023 Page 3 (3) Whether, as the City Mayor, you would be permitted to vote in a public meeting or an executive session on a matter or issue of concern to PA United or Crawford County United; (4) Whether, as the Member Organizer for PA United, you would be permitted to be paid by PA United to discuss/comment on issues regarding sessions of City Council; (5) Whether, as the City Mayor, you would be permitted to discuss/comment on issues regarding PA or executive sessions of City Council; (6) Whether, as the Member Organizer for PA United, you would be permitted to assist other employees and volunteers of PA United with advocating on issues directly related to any legislative or policy issues of concern to PA United or Crawford County United; (7) Whether, as the Member Organizer for PA United, you would be permitted to make comments regarding Crawfo public meeting of City Council or a City Council Committee/Subcommittee, where such comments would be made from the floor and not from your seat at the City Council or City Council Committee/Subcommittee table and you would identify yourself as the Member Organizer for PA United; (8) Whether, as the Member Organizer for PA United, you would be permitted to advocate for PA United or Crawford County United through sending emails and providing literature, letters, memoranda, and the like to City Council Members or City staff; and (9) Whether, as the Member Organizer for PA United, you would be permitted to communicate verbally with a City Council Member or City staff outside of sessions of City Council or a City Council Committee/Subcommittee. 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: Kinder, 23-544 July 31, 2023 Page 4 § 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 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 Kinder, 23-544 July 31, 2023 Page 5 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. (i.e. 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. 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. Kistler v. State Ethics Commission, 610 Pa. 516, 22 A.3d 223 (2011), in order to violate Section 1103(a) of the Ethics Act, a public official/public employee: public position\] to the purpose of obtaining for himself a private pecuniary benefit. Such directed action implies awareness on the part of the \[public official/public employee\] of the potential pecuniary benefit as well as the motivation to obtain that benefit for himself. Kistler, supra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics Act, a himself, his family, or his business, and then must take action in the form of one or more specific Id., 610 Pa. at 528, 22 A.3d at 231. 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 Kinder, 23-544 July 31, 2023 Page 6 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 the City Mayor, you are a public official subject to the provisions of the Ethics Act. PA United is a business with which you are associated in your capacity as an employee. Pursuant to Section 1103(a) of the Ethics Act, you generally would have a conflict of interest as the City Mayor in matters that would financially impact you or PA United. Section 1103(a) of the Ethics Act, pertaining to conflict of interest, imposes restrictions upon public officials and public employees. Therefore, Section 1103(a) of the Ethics Act imposes restrictions upon you in your capacity as a public official (i.e., the City Mayor), rather than upon you in your private capacity as the Member Organizer for PA United. Accordingly, you are advised that Section 1103(a) of the Ethics Act would not prohibit you, in your private capacity as the Member Organizer for PA United, from: (1) Lobbying the County government and municipal governments about legislation and policies that would benefit large groups of poor and working people in the County; (2) Assisting other employees and volunteers of PA United with advocating on issues directly related to any legislative or policy issues of concern to PA United or Crawford County United; (3) Making comments regarding or other concerns during a public meeting of City Council or a City Council Committee/Subcommittee, where such comments would be made from the floor and not from your seat at the City Council or City Council Committee/Subcommittee table and you would identify yourself as the Member Organizer for PA United; (4) Being paid by PA United for discussing/making comments regarding or Crawford County Uni procedure set forth above; (5) Advocating for PA United or Crawford County United through sending emails and providing literature, letters, memoranda, and the like to City Council Members or City staff; or (6) Communicating verbally with a City Council Member or City staff outside of sessions of City Council or a City Council Committee/Subcommittee. Kinder, 23-544 July 31, 2023 Page 7 As the City Mayor, pursuant to Section 1103(a) of the Ethics Act, you generally would have a conflict of interest in matters before the City government, including City Council or a City Council Committee/Subcommittee, that would financially impact you or PA United. It is noted that the submitted facts do not indicate whether any use of the authority of your office as the City Mayor with respect to matters or issues of concern to PA United or Crawford County United would result in a private pecuniary benefit to you or PA United. Accordingly, you are advised that you would not have a conflict of interest and would not violate Section 1103(a) of the Ethics Act in your public capacity as the City Mayor by: (1) Being present in a session of City Council when an issue which PA United or Crawford County United is actively lobbying for or against is going to be discussed but not voted on; (2) Voting in a public meeting or an executive session on a matter or issue of concern to PA United or Crawford County United; or (3) Discussing/commenting on issues regarding Crawford County , unless: (a) you would be consciously aware of a private pecuniary benefit for yourself or PA United; (b) your action(s) would constitute one or more specific steps to attain that benefit; and (c) neither of the statutory exclusions to the definition of "conflict" or "conflict of interest" as set forth in the Ethics Act, 65 Pa.C.S. § 1102, would be applicable. 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 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 Kinder, 23-544 July 31, 2023 Page 8 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