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HomeMy WebLinkAbout23-567 BestPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 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 Best, 23-567 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 Best, 23-567 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 Best, 23-567 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