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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
January 9, 2024
To the Requester:
The Honorable Ron Mozer
Mayor, City of Monessen
Dear Mayor Mozer:
24-502
This responds to your letter dated 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:
Whether, pursuant to Section 1103(a) of the Public Official and Employee Ethics Act
("Ethics Act"), 65 Pa.C.S. § 1103(a), an individual serving as a city mayor would have a
conflict of interest with regard to participating in matters before the city pertaining to a
non-profit organization that has been provided with city -owned property for the purpose of
building low income based homes, if the individual, in his private capacity, would lease
office and storage space in a building which he owns to the non-profit organization.
Brief Answer: If the individual would lease office and storage space in his building to the
non-profit organization, the individual's business relationship with the non-profit
organization in and of itself would not form the basis of a conflict of interest for the
individual in matters before the city pertaining to the non-profit organization. Accordingly,
unless there would be a basis for a conflict of interest such as a private pecuniary (financial)
benefit to the individual, a member of his immediate family, or a business with which he
or a member of his immediate family is associated, the individual would not have a conflict
of interest in his public capacity as the city mayor with regard to participating in matters
pertaining to the non-profit organization.
Mozer, 24-502
January 9, 2024
Page 2
Facts:
You request an advisory from the Commission based on submitted facts that may be fairly
summarized as follows.
On January 3, 2022, you took office as Mayor of the City of Monessen ("City"). The City
is a Third Class City. As the City Mayor, you are President of City Council.
Westmoreland Community Action is a non-profit organization based in Greensburg,
Pennsylvania. During the February 23, 2023, meeting of City Council, it was agreed that the City
would make three City -owned properties available to Westmoreland Community Action to be used
for building low income based homes. Two other properties owned by Westmoreland Land Bank
were also provided to Westmoreland Community Action for the low income based home project.
After it came to your attention that Westmoreland Community Action was interested in
office space, you showed the organization several properties, including a City -owned property, but
the properties were not suitable for various reasons. After exhausting as options all other known
properties which Westmoreland Community Action might be interested in, you mentioned to the
organization that you own a building located at 216 3rd Street in the City. Your building has a total
of 6400 square feet, and you are considering leasing to Westmoreland Community Action 1600
square feet of office space, with access to a restroom and kitchen, and 1000 square feet in the
basement for storage for the total price of $500 per month.
The question that is posed by your advisory request is whether you would have a conflict
of interest as the City Mayor in matters pertaining to Westmoreland Community Action if you
would lease office and storage space in your building to Westmoreland Community Action.
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 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.
Mozer, 24-502
January 9, 2024
Page 3
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.
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.
Mozer, 24-502
January 9, 2024
Page 4
"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 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/employment
or confidential information received by holding such a public position for the advancement of his
own private pecuniary (financial) benefit or that of a business with which he 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.
As the City Mayor, you are a public official subject to the provisions of the Ethics Act.
Section 1103(a) of the Ethics Act would not prohibit you, in your private capacity, from leasing
office and storage space in your building to Westmoreland Community Action. Such a business
relationship with Westmoreland Community Action: (1) would not cause Westmoreland
Community Action to be considered a business with which you are associated as that term is
defined in the Ethics Act; and (2) would not in and of itself form the basis of a conflict of interest
for you in matters before the City pertaining to Westmoreland Community Action. Accordingly,
unless there would be a basis for a conflict of interest such as a private pecuniary (financial) benefit
to you, a member of your immediate family, or a business with which you or a member of your
immediate family is associated, you would not have a conflict of interest in your public capacity
as the City Mayor with regard to participating in matters pertaining to Westmoreland Community
Action.
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
Mozer, 24-502
January 9, 2024
Page 5
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,
r
Bridget K. Guilfoyle
Chief Counsel