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PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806
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613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL
October 10, 2023
To the Requester:
23-551
This responds to your letter received September 21, 2023, by which you requested a
confidential advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking
guidance as to the general issue presented below:
Issue:
Whetherthe Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et
seq., would impose prohibitions or restrictions upon you, in your capacity as the \[Position\]
for the \[Governmental Body\], with regard to accepting an offer from a vendor to cover the
cost of your transportation and lodging for making a visit to the vendor’s facilities to
inspect the vendor’s facilities and work product in connection with a \[Type of Project\] that
the vendor is working on under a contract with the \[Governmental Body\], where you were
involved in the process by which the vendor was selected for the project and awarded a
contract for the project.
Brief Answer: The Ethics Act would not prohibit you from accepting the vendor’s offer to
cover the cost of your transportation and lodging for making a visit to the vendor’s facilities
subject to the condition that there would be no understanding that your official action or
judgment would be influenced thereby in contravention of Sections 1103(b)-(c) of the
Ethics Act.
Facts:
You request a confidential advisory from the Commission based on submitted facts that
may be fairly summarized as follows.
You are the \[Position\] for the \[Governmental Body\]. In your role with the \[Governmental
Body\], you prepared a Request for Proposals for a \[Type of Project\] (“the Project”), and you were
Confidential Advice, 23-551
October 10, 2023
Page 2
involved in the process for selecting a vendor for the Project. After a contract for the Project was
awarded to a vendor (“the Project Vendor”), you worked to finalize the terms and conditions of
the contract, which was signed by other \[Political Subdivision\] representatives. You were
ultimately appointed to oversee the performance of the Project Vendor’s work. The \[Governmental
Body\] made requests to several \[Types of Entities\] for funding for the Project.
The Project Vendor is engaged in \[Certain Off-Site Activities\]. The \[Public Official\] has
asked you to visit the Project Vendor’s facilities to inspect the facilities and the Project Vendor’s
work product. The Project Vendor has offered to cover the cost of your transportation and lodging
for making the visit.
A visit to the Project Vendor’s facilities would allow the \[Governmental Body\]: (1) to
assess the Project Vendor’s equipment and processes and the condition of \[Certain Items\]; (2) to
confirm that proper security protocols are in place to protect \[Certain Items\]from theft or
unauthorized access; (3) to identify any potential inefficiencies or areas where cost savings may
be achieved; and (4) to strengthen the working relationship with the Project Vendor through face-
to-face interactions. A visit would further allow for \[a Method of Documenting\] the Project, which
may enhance the impact of future requests made to \[Types of Entities\] for additional funding for
the Project as well as demonstrate transparency in how tax dollars are being utilized.
Based upon the above submitted facts, you ask whether the Ethics Act would impose
prohibitions or restrictions upon you with regard to accepting the Project Vendor’s offer to cover
the cost of your transportation and lodging for making a visit to the Project Vendor’s facilities.
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) of the 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).
The following terms related to Section 1103(a) are defined in the Ethics Act as follows:
§ 1102. Definitions
Confidential Advice, 23-551
October 10, 2023
Page 3
“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.
65 Pa.C.S. § 1102.
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” and 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.
Per Commission precedent, the Ethics Act does not prohibit a public official/public
employee from accepting “no-strings-attached” gifts, transportation, lodging or hospitality. Cf.,
Cooper, Opinion 92-009.
Sections 1103(b) and 1103(c) of the Ethics Act, 65 Pa.C.S. §§ 1103(b), 1103(c), provide
in part that no person shall offer or give to a public official/public employee anything of monetary
value and no public official/public employee shall solicit or accept anything of monetary value
based upon the understanding that the vote, official action, or judgment of the public official/public
employee would be influenced thereby.
Sections 1104(a) and 1105(b) of the Ethics Act, 65 Pa.C.S. §§ 1104(a), 1105(b), provide
for the filing of annual Statements of Financial Interests by public officials/public employees.
Subject to certain statutory exceptions, Section 1105(b)(7) of the Ethics Act, 65 Pa.C.S. §
1105(b)(7), requires the filer to disclose on the Statement of Financial Interests the name and
address of the source and the amount of any payment for or reimbursement of actual expenses for
transportation and lodging or hospitality received in connection with public office or employment
where such actual expenses exceed $650 in an aggregate amount per year.
Conclusion:
Confidential Advice, 23-551
October 10, 2023
Page 4
In applying the above provisions of the Ethics Act to the instant matter, you are advised as
follows.
As the \[Position\] for the \[Governmental Body\], you are a public official/public employee
subject to the provisions of the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, you
generally would be prohibited from using the authority of your public position or confidential
information received by holding your public position for the private pecuniary (financial) benefit
of yourself, a member of your immediate family, or a business with which you or a member of
your family is associated.
The Ethics Act would not prohibit you from accepting the Project Vendor’s offer to cover
the cost of your transportation and lodging for making a visit to the Project Vendor’s facilities
subject to the condition that there would be no understanding that your official action or judgment
would be influenced thereby in contravention of Sections 1103(b)-(c) of the Ethics Act. Cf.,
Ewald, Advice 12-524.
To the extent the reporting threshold of Section 1105(b)(7) of the Ethics Act would be met,
you would be required to satisfy the disclosure requirements of Section 1105(b)(7) of the Ethics
Act as to the transportation and lodging received from the Project Vendor.
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