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:
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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