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HomeMy WebLinkAbout24-514 MustacchioPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 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 March 11, 2024 To the Requester: C.J. Mustacchio, Esquire Dear Mr. Mustacchio: 24-514 This responds to your letter dated February 12, 2024, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the issue presented below: Issue: Whether a borough 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 making or seconding a motion and voting to appoint his son as the borough fire chief, where his son would receive compensation in the amount of $50 per month for serving as the borough fire chief. Brief Answer: NO. The borough council member would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to making or seconding a motion and voting to appoint his son to the position of borough fire chief because the amount of compensation that his son would receive for serving in such position would be de minimis (i.e., insignificant). Facts: You have been authorized by Gerard Tully ("Mr. Tully") to request an advisory from the Commission on his behalf. You have submitted facts that may be fairly summarized as follows. Mr. Tully is a Member of Council for the Borough of Olyphant ("Borough"). The Olyphant Borough Fire Department, which is comprised of five hose companies staffed by volunteer firefighters, provides fire protection services to the Borough. Mr. Tully's son, J.T. Tully, is a member of one of the five hose companies of the Olyphant Borough Fire Department. Mustacchio, 24-514 March 11, 2024 Page 2 The individual who the Borough appoints to the position of Borough Fire Chief is chosen from the members of the five hose companies of the Olyphant Borough Fire Department. The Borough Fire Chief is paid $50 per month and receives no benefits. You have submitted copies of the Constitution and By -Laws of the Olyphant Borough Fire Department and a proposed Borough ordinance pertaining to the eligibility requirements for appointment to the position of Borough Fire Chief, which documents are incorporated herein by reference. You ask whether Mr. Tully would have a conflict of interest with regard to making or seconding a motion and voting to appoint his son as the Borough Fire Chief. 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. 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 Mustacchio, 24-514 March 11, 2024 Page 3 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. "Immediate family." A parent, spouse, child, brother or sister. "De minimis economic impact." An economic consequence which has an insignificant effect. 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" and 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. 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. Mustacchio, 24-514 March 11, 2024 Page 4 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. A conflict of interest would not exist to the extent the "de minimis exclusion" or the "class/subclass" exclusion set forth within the Ethics Act's definition of the term "conflict" or "conflict of interest" would be applicable. In pertinent part, 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 the past, the Commission has found amounts up to approximately $1,200 to be de minimis. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As a Member of Borough Council, Mr. Tully is a public official subject to the provisions of the Ethics Act. Mr. Tully's son, J.T. Tully, is a member of Mr. Tully's "immediate family" as that term is defined in the Ethics Act. As a Member of Borough Council, Mr. Tully would have a conflict of interest under Section 1103(a) of the Ethics Act in matters that would financially impact his son unless the "de minimis" exclusion or the "class/subclass" exclusion to the definition of "conflict" or "conflict of interest" as set forth in Section 1102 of the Ethics Act would be applicable. Mr. Tully would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to making or seconding a motion and voting to appoint his son as the Borough Fire Chief because under the submitted facts, the amount of compensation that his son would receive for serving in such position would be de minimis. 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. Mustacchio, 24-514 March 11, 2024 Page 5 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