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HomeMy WebLinkAbout24-513 Confidential 1 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 March 11, 2024 To the Requester: 24-513 This responds to your letter dated February 17, 2024, by which you requested a confidential advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the issue presented below: Issue: Whether et seq., would impose prohibitions or restrictions upon a \[Member\] of a \[Political Subdivision Governing Body\] with regard to participating in meetings or votes of the \[Political Subdivision Governing Body\] pertaining to the final \[Type of Plan\] for a \[Commercial Establishment\] or \[Certain Reviews\], \[Certain Approvals\], and other matters involving the final \[Type of Plan\] for the \[Commercial Establishment\], where the \[Commercial Establishment\] would be built in close proximity to the residence of the \[Political Subdivision Governing Body Member\] and her \[Relative\] and the \[Political Subdivision \[Relative\] participated in litigation that unsuccessfully opposed the \[Commercial Establishment\] project. Brief Answer: The fact that the \[Relative\] participated in litigation that unsuccessfully opposed the \[Commercial Establishment\] project in and of itself would not form the basis of a conflict of interest for the \[Political Subdivision Governing Body Member\] in matters involving the \[Commercial Establishment\] project. Accordingly, the \[Political Subdivision Governing Body Member\] would not have a conflict of interest and would not violate Section 1103(a) of the Ethics Act by participating in meetings or votes of the \[Political Subdivision Governing Body\] pertaining to the final \[Type of Plan\] for the \[Commercial Establishment\] or \[Certain Reviews\], \[Certain Approvals\], and other matters involving the final \[Type of Plan\] for the \[Commercial Establishment\] unless: (1) she would be consciously aware of a private pecuniary (financial) benefit for herself, a member of her immediate family such as her \[Relative\], or a business with which she or a member of her immediate family is associated; Confidential Advice, 24-513 March 11, 2024 Page 2 (2) her action(s) would constitute one or more specific steps to attain that benefit; and (3) neither of the statutory exclusions to the definition of conflict or conflict of interest as 1 set forth in the Ethics Act, 65 Pa.C.S. § 1102, would be applicable. Facts: You request a confidential advisory from the Commission based upon the following submitted facts. You were elected as a \[Member\] of the \[Governing Body\] of the \[Political Subdivision\] in \[Month, Year\]. The \[Political Subdivision\] operates under a \[Type of Government\]. Prior to your election as a \[Political Subdivision Governing Body Member\], your \[Relative\] became an adverse party to a \[Type of Application\] for a \[Name of Company\] \[Commercial Establishment\] that would be built within close proximity to your and your residence. Although the \[Political Subdivision Governing Body\] rejected the preliminary \[Type of Plan\] for the \[Commercial Establishment\], the preliminary \[Type of Plan\] was ultimately approved as a result of rulings by \[Certain Courts\] in litigation before those courts. Your \[Relative\] was actively involved in opposing the \[Commercial Establishment\] project in the court system. As a result of the cfinal \[Type of Plan\] for the \[Commercial Establishment\] will likely be brought before the \[Political Subdivision Governing Body\] for approval. You seek guidance as to whether the Ethics Act would permit you to participate in meetings or votes of the \[Political Subdivision Governing Body\] pertaining to the final \[Type of Plan\] for the \[Commercial Establishment\] or \[Certain Reviews\], \[Certain Approvals\], and other matters involving the final \[Type of Plan\] for the \[Commercial Establishment\]. 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 1 Action that has a de minimis (insignificant) economic impact or that 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, does not constitute a conflict of interest. Confidential Advice, 24-513 March 11, 2024 Page 3 (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 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), 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. Confidential Advice, 24-513 March 11, 2024 Page 4 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. A parent, spouse, child, brother or sister. 65 Pa.C.S. § 1102. 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 include voting 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. A conflict of interest would not exist to the extent the "de minimis exclusion" and/or the class/subclassexclusion set forth within the Ethics Acts definition of the term "conflict" or "conflict of interest" would be applicable. The de minimis exclusion precludes a finding of a conflict of interest as to an action having a de minimis (insignificant) economic impact. Thus, when a matter that would otherwise constitute a conflict of interest under the Ethics Act would have an insignificant economic impact, a conflict would not exist and Section 1103(a) of the Ethics Act would not be implicated. See, Kolb, Order 1322; Schweinsburg, Order 900. The Commission has determined the applicability of the de minimis exclusion on a case-by-case basis, considering all relevant circumstances. In order for the class/subclass exclusion to apply, two criteria must be met: (1) the affected public official/public employee, immediate family member, or business with which the public official/public employee or immediate family member is associated must be a member of a class consisting of the general public or a true subclass consisting of more than one member; and (2) the public official/public employee, immediate family member, or business with which the public official/public employee or immediate family member is associated must be affected "to the same degree" (in no way differently) than the other members of the class/subclass. 65 Pa.C.S. § 1102; Kablack, Opinion 02-003; Rubenstein, Opinion 01-007. The first criterion of the exclusion is satisfied where the members of the proposed subclass are similarly situated as the result of relevant shared characteristics. The second criterion of the exclusion is satisfied where the Confidential Advice, 24-513 March 11, 2024 Page 5 individual/business in question and the other members of the class/subclass are reasonably affected to the same degree by the proposed action. Kablack, supra. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As a \[Political Subdivision Governing Body Member\], you are a public official subject to the provisions of the Ethics Act. Your \[Relative\] is a member of your term is defined in the Ethics Act. As a \[Political Subdivision Governing Body Member\], you generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters that would financially impact you, a member of your immediate family such as your \[Relative\], or a business with which you or a member of your immediate family is associated. The fact that your \[Relative\] participated in litigation that unsuccessfully opposed the \[Commercial Establishment\] project in and of itself would not form the basis of a conflict of interest for you in matters involving the \[Commercial Establishment\] project. Accordingly, you would not have a conflict of interest and would not violate Section 1103(a) of the Ethics Act by participating in meetings or votes of the \[Political Subdivision Governing Body\] pertaining to the final \[Type of Plan\] for the \[Commercial Establishment\] or \[Certain Reviews\], \[Certain Approvals\], and other matters involving the final \[Type of Plan\] for the \[Commercial Establishment\] unless: (1) you would be consciously aware of a private pecuniary (financial) benefit for yourself, a member of your immediate family such as your \[Relative\], or a business with which you or a member of your immediate family is associated; (2) your action(s) would constitute one or more specific steps to attain that benefit; and (3) neither of the statutory exclusions to the definition of conflict or conflict of interest as set forth in the Ethics Act, 65 Pa.C.S. § 1102, would be applicable. 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 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. 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. Confidential Advice, 24-513 March 11, 2024 Page 6 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, Bridget K. Guilfoyle Chief Counsel