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HomeMy WebLinkAbout24-001 ConfidentialPHONE: 717-783-1610 STATE ETHICSCOMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.e s 0V 613 NORTH STREET, ROOM 309 HARRISCat, RG, I 'A 17120-0400 " "INI"N "IF THE C0-`MM1`S1`N 01r Before: Michael A. Schwartz, Chair Paul E. Parsells David L. Reddecliff Robert P. Caruso Emilia McKee Vassallo Thomas E. Leipold DATE DECIDED: 1/11/24 DATE MAII,ED: 1/12/24 To the Requester: 24-0�O 1 This responds to your letter dated November 7, 2023, by which you requested a confidential advisory opinion from this Commission. I. ISSUE: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § I 10 1 et M., would impose prohibitions or restrictions upon the [Pennsylvania Officer] with regard to accepting a paid position on the governing board of a [Type of Company]. 11. FACTUAL BASIS FOR DETERMINATION: You request a confidential advisory opinion from this Commission on behalf of the [Pennsylvania Officer] ("the [Officer]"), You have submitted facts that may be fairly summarized as follows. The [Officer] is the head of the [Pennsylvania Agency] ("the [Agency]"), An executive of a [Type of Company] ("the Company") has asked the [Officer] about assuming a paid role as a member of the governing board of the Company. The [Officer] has no legal authority to regulate, oversee, or otherwise influence the core [Type of' Operations] of the Company. The [Agency] does not [Perform Certain Activities Involving the Company]. The Company is subject to Pennsylvania's [Law], which requires [an Activity Related to the Agency]. The Company has a consistent [Type of History] with the [Agency], and there are no pending or contemplated [Types of Actions] involving the Company. The [Agency] has not been requested by any state agencies to [Perform a Function Pertaining to the Company]. Confidential Opinion, 24-001 January 11, 2024 Page 2 The duties of the [Officer] include serving on [Various Bodies]. The [Bodies] on which the [Officer] serves do not have any regulatory or government oversight authority related to the Company's [Type of Activities]. Based upon the above submitted facts, you ask whether the Ethics Act would impose any prohibitions or restrictions upon the [Officer] with regard to accepting a paid position on the governing board of the Company. By letter dated November 13, 2023, you were notified of the date, time and location of the executive meeting at which your request would be considered. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), Opinions are issued to the requester based upon the facts that the requester has submitted. In issuing a ruling based upon the facts that the requester has submitted, this 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 Opinion only affords a defense to the extent the requester has truthfully disclosed all material facts. The [Officer] is a public official subject to the provisions of the Ethics Act. 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 Confidential O inion, 24-001 .January 11, 2024 Page 3 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. "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," 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 Confidential Opinion, 24-001 January 11, 2024 Page 4 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. Section 1103(a) of the Ethics Act does not prohibit a public official/public employee from having outside business activities or employment. However, subject to the statutory exclusions to the definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, a public official/public employee may not use the authority of his public position or confidential information received as a result of being in his public position for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89- 011. Having established the above general principles, you are advised that Section 1103(a) of the Ethics Act would not prohibit the [Officer] from accepting a paid position on the governing board of the Company. If the [Officer] would accept such a position, the Company would be considered a business with which the [Officer] is associated. Accordingly, under such circumstances, Section 1103(a) of the Ethics Act would prohibit the [Officer] from using the authority of her office or her status as the [Officer], or using Commonwealth resources or facilities or confidential information accessed or received as a result of being the [Officer], in furtherance of a private pecuniary benefit for herself or the Company. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. C"nne.lncinn. The [Pennsylvania Officer] ("the [Officer]") is a public official subject to the provisions of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et Se�}c . Section 1103(a) of the Ethics Act would not prohibit the [Officer] from accepting a paid position on the governing board of a [Type of Company] ("the Company"). If the [Officer] would accept such a position, the Company would be considered a business with which the [Officer] is associated. Accordingly, under such circumstances, Section 1103(a) of the Ethics Act would prohibit the [Officer] from using the authority of her office or her status as the [Officer], or using Commonwealth resources or facilities or confidential information accessed or received as a result of being the [Officer], in furtherance of a private pecuniary benefit for herself or the Company. The propriety of the proposed course of conduct has only been addressed under the Ethics Act. Confidential O inion, 24-001 January 11, 2024 Page 5 Pursuant to Section 1107(10) of the Ethics Act, 65 Pa.C.S. § 1107(10), the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. By the Commission, l Michael A. Schwartz Chair