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PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806
TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL
January 9, 2024
To the Requester:
John Jay Wills, Esquire
24-503
Dear Mr. Wills:
This responds to your letter dated December 22, 2023, by which you requested an advisory
from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to theissue
presented below:
Issue:
Whether an individual serving as aborough council member would have a conflict of
interest pursuant to Section 1103(a) of the Public Official and Employee Ethics Act
(“Ethics Act”), 65 Pa.C.S. § 1103(a), with regard to voting on the quarterly dispersal of
borough funds allocated to a fire companyfor fire protection, suppression, and rescue
services, where the individual serves as a part-time volunteer firefighterwith the fire
company.
Brief Answer: Even if the fire companywould be considered a “business” as that term is
defined in the Ethics Act (which cannot be determined from the submitted facts), the fire
company would not be considered a business with which the individual is associated. This
is because under the submitted facts, the individual is not a director, officer, owner,
employee, or holder of a financial interest in the fire company.
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 her immediate family, or a
business with which she or amember of herimmediate family is associated, the individual,
in hercapacity as a borough council member, would not have a conflict of interest under
Section 1103(a) of the Ethics Act with regard to voting on the quarterly dispersal of
borough funds allocated to the fire company.
Wills, 24-503
January 9, 2024
Page 2
Facts:
You have been authorized by Sarah Haynes (“Ms. Haynes”) to request an advisory from
the Commission on her behalf. You have submitted facts that may be fairly summarized as
follows.
Ms. Haynes was elected as a Member of Council for Parkside Borough (“Borough”),
Delaware County, Pennsylvania, in November 2023 for a term of office beginning on January 2,
2024. On December 20, 2023, Borough Council adopted a Borough budget for 2024 which
allocated funds totaling $135,000 to the Parkside Fire Company (the “Fire Company”) for fire
protection, suppression, and rescue services. Funds allocated to the Fire Company for such
services are traditionally dispersed to the Fire Company in quarterly installments through a vote
of Borough Council at its monthly meetings in January, April, July, and October. Ms. Haynes
serves as a part-time volunteer firefighter with the Fire Company.
You ask whether Ms. Haynes would have a conflict of interest with regard to voting on the
quarterly dispersal of the funds allocated to the Fire Company.
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 1103(j) 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.
(j)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 awritten
memorandum filed with the person responsible for recording the
Wills,24-503
January 9, 2024
Page 3
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), 1103(j).
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.
“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.
Wills, 24-503
January 9, 2024
Page 4
“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,” 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 includevoting unless one of the statutory exceptions
of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements
of Section 1103(j) 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 a Borough Council Member, Ms. Haynes is a public officialsubject to the provisions
of the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, Ms. Haynes generally would
have a conflict of interest in matters that would financially impact her, a member of her immediate
family, or a business with which she or a member of herimmediate family is associated.
Even if the Fire Companywould be considered a “business” as that term is defined in the
Ethics Act (which cannot be determined fromthe submitted facts), the Fire Companywould not
be considered a business with which Ms. Haynes is associated because under the submitted facts,
Ms. Haynes is not a director, officer, owner, employee, or holder of a financial interest in the Fire
Company.Therefore, unless there would be a basis for a conflict of interest suchas a private
pecuniary (financial) benefit toMs. Haynes, a member of her immediate family, or a business with
which she or amember of herimmediate family is associated, Ms. Hayneswould not have a
conflict of interest under Section 1103(a) of the Ethics Act as a Borough Council Member with
regard to voting on the quarterly dispersal of the funds allocated to the Fire Company.
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
Wills, 24-503
January 9, 2024
Page 5
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 filesuch an appeal at the Commission within thirty (30)
days may result in the dismissal of the appeal.
Respectfully,
Bridget K. Guilfoyle
Chief Counsel