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HomeMy WebLinkAbout23-566 DiemerPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: Erik Diemer Dear Mr. Diemer: STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov ADVICE OF COUNSEL December 28, 2023 23-566 This responds to your letter dated December 15, 2023, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the issue presented below: Issue: Whether Section 1103(a) of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1103(a), pertaining to conflict of interest, would prohibit an individual who has been elected as the Controller for Monroe County ("County"), Pennsylvania, from serving as an officer of one or more organizations that plan, coordinate, or support community events or serving as a volunteer event coordinator. Brief Answer: NO. Because Section 1103(a) of the Ethics Act imposes restrictions upon public officials and public employees in their public capacities and not their private capacities, Section 1103(a) would not prohibit the individual, in his private capacity, from serving as an officer of one or more organizations that plan, coordinate, or support community events or serving as a volunteer event coordinator. However, in his public capacity as the County Controller, the individual generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters that would financially impact him, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Facts: Diemer, 23-566 December 28, 2023 Page 2 You request an advisory from the Commission based on submitted facts that may be fairly summarized as follows. In November 2023, you were elected as the County Controller for a four-year term. You will be sworn into office on January 2, 2024. As the County Controller, you will oversee the County's finances, including the County payroll and the payment of County bills. In a private capacity, you are a Member of the Board of Directors of Go Collaborative ("Go -Co"), which is a humanities and arts organization based in Stroudsburg, Pennsylvania. Go - Co coordinates with artists to fill Stroudsburg with sculptures and murals. Go -Co also supports free community events such as Spooky Stroudsburg, the Annual Christmas Tree Lighting, and Winterfest. Go -Co receives donations from individuals and businesses, and it also receives funding from the Commonwealth to promote local tourism. In addition to serving on the Board of Directors of Go -Co, you are the sole event coordinator for the Annual Christmas Tree Lighting, which takes place in downtown Stroudsburg. You volunteer your time to plan and run the event, and you receive donations from local businesses for the event. Go -Co uses funds received from the Commonwealth to pay some costs related to the event. No revenue or profit is generated from the event. You are also involved with running the annual Pocono Pride Festival, which is held in June. You and two other men volunteer your time to run the event, and no personal revenue or profit is received from the event. The event is funded solely by revenue from vendors and merchandise sales and contributions from individuals and corporations. In preparation for the 2024 event, a partnership may be entered into with the Community Foundation of Monroe County ("CFMC"), which is a non-profit foundation. The CFMC enables smaller organizations to operate without having to form and maintain their own non-profit entities. You would not be a Member of the Board of Directors of the CFMC in connection with the partnership. You and the other two men who run the Pocono Pride Festival plan to form an organization underneath the CFMC which would be named "The Pocono Pride Coalition." The purpose of The Pocono Pride Coalition would be to coordinate the Pocono Pride Festival and other LGBTQIA+ related initiatives in the area of the Pocono Mountains. You would like to serve as the Treasurer of The Pocono Pride Coalition. You seek guidance as to whether the Ethics Act would impose any prohibitions or restrictions upon you with regard to engaging in the community activities or serving as a director or officer of the organizations as set forth above. 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 Diemer, 23-566 December 28, 2023 Page 3 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 11030) 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. 0) 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), 11030). 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. Diemer, 23-566 December 28, 2023 Page 4 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. "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. 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. 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 11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) 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. Upon taking office as the County Controller, you would become a public official subject to the provisions of the Ethics Act. Go -Co is a business with which you are associated as a director. Diemer, 23-566 December 28, 2023 Page 5 If you would become the Treasurer of The Pocono Pride Coalition, it would also be considered a business with which you are associated as an officer. Section 1103(a) of the Ethics Act, pertaining to conflict of interest, imposes restrictions upon public officials and public employees in their public capacities and not their private capacities. Therefore, Section 1103(a) of the Ethics Act would not prohibit you, in your private capacity, from coordinating the Annual Christmas Tree Lighting or the Pocono Pride Festival or serving as a Member of the Board of Directors of Go -Co or as the Treasurer of The Pocono Pride Coalition. However, in your public capacity as the County Controller, you generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters 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. 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 11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) 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 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