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To the Requester:
Kate Best
Dear Ms. Best:
STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL
December 28, 2023
FACSIMILE: 717-787-0806
WEBSITE: www.ethics.pa.gov
23-567
This responds to your letter received December 18, 2023, by which you requested an
advisory from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as
to the issue presented below:
Issue:
Facts:
Whether, as the Monroe County Register of Wills/Recorder of Deeds, 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 appointing as the Solicitor for your
public office an attorney who is the sole shareholder of his own professional corporation,
where the attorney and your husband are partners in a separate legal entity.
Brief Answer: NO. You would not have a conflict of interest under Section 1103(a) of the
Ethics Act with regard to appointing the attorney as the Solicitor for your public office
because under the submitted facts, neither your husband nor the separate legal entity in
which your husband and the attorney are partners would financially benefit from the
appointment.
You request an advisory from the Commission based on the following submitted facts.
You have been elected as the Register of Wills/Recorder of Deeds for Monroe County,
Pennsylvania. You would like to appoint Jason R. Costanzo, Esquire ("Mr. Costanzo") as the
Solicitor for your public office. Mr. Costanzo is the sole shareholder of his own professional
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December 28, 2023
Page 2
corporation, and if he would be appointed as the Solicitor for your public office, he would serve
in that capacity through his professional corporation.
Mr. Costanzo and your husband, Patrick J. Best, Esquire, are partners in a legal entity
named "ARM Lawyers." Mr. Costanzo practices law through ARM Lawyers as well as through
his own professional corporation. The appointment of Mr. Costanzo as the Solicitor for your
public office would not constitute the appointment of ARM Lawyers or its attorneys as the
Solicitor. Your husband would receive no financial benefit if you would appoint Mr. Costanzo as
the Solicitor for your public office.
You seek guidance as to whether the Ethics Act would impose any prohibitions or
restrictions upon you with regard to appointing Mr. Costanzo as the Solicitor for your public office.
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
"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
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December 28, 2023
Page 3
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.
"Immediate family." A parent, spouse, child, brother or
sister.
"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" or 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.
In each instance of a conflict of interest, the public official/public employee would be
required to abstain from participation. The abstention requirement would extend 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.
Conclusion:
In applying the above provisions of the Ethics Act to the instant matter, you are advised as
follows.
Upon taking office as the Monroe County Register of Wills/Recorder of Deeds, you would
become 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. ARM Lawyers is a business with
which your husband is associated as a partner. Pursuant to Section 1103(a) of the Ethics Act, you
generally would have a conflict of interest as the Monroe County Register of Wills/Recorder of
Deeds in matters that would financially impact you, your husband, or ARM Lawyers. You would
not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to appointing
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December 28, 2023
Page 4
Mr. Costanzo as the Solicitor for your public office because under the submitted facts, neither your
husband nor ARM Lawyers would financially benefit from the appointment.
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,
r
Bridget K. Guilfoyle
Chief Counsel