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HomeMy WebLinkAbout24-516 Confidential 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 14, 2024 To the Requester: 24-516 This responds to your submission received February 23, 2024, by which you requested a confidential advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the issues presented below: Issues: (1) Whether the et seq., would impose prohibitions or restrictions upon an individual serving as a Member of \[Governmental Body 1\], who also serves as a Member and \[Officer\] of \[Governmental Body 2\], with regard to participating in review of the \[Type of Plan\] for a project Brief Answer: NO. Based upon the submitted facts, in his capacity as a Member of \[Governmental Body 1\], the individual is not the Ethics Act. Therefore, the Ethics Act would not impose prohibitions or restrictions upon the individual with regard to participating in review of the Project\[Type of Plan\]. (2) Whether the Ethics Act would impose prohibitions or restrictions upon the individual with regard to appearing before \[Governmental Body 1\] or \[Governmental Body 2\] at a public meeting in his private capacity as a citizen and expressing his views or submitting written remarks either for or against the Project\[Type of Plan\] or its \[Type of Imposed Requirements\]. Brief Answer: NO. Because Section 1103(a) of the Ethics Act (pertaining to conflict of interest) imposes restrictions upon the individual in his public capacity as a \[Member of Governmental Body 2\] and not in his private capacity, the individual would not be prohibited from appearing before \[Governmental Body 1\] or \[Governmental Body 2\] in his Confidential Advice, 24-516 March 14, 2024 Page 2 private capacity as a citizen and expressing his views or submitting written remarks either for or against the Project\[Type of Plan\] or its \[Type of Imposed Requirements\]. (3) Whether the individual would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in deliberations or votes of \[Governmental Body 2\] on the approval of the \[Type of Plan\]. Brief Answer: The individual would have a conflict of interest with regard to participating in deliberations or votes of \[Governmental Body 2\] \[Type of Plan\] if: (1) the individual would be consciously aware of a private pecuniary (financial) benefit for himself, a member of his immediate family, or a business with which he or a 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 1 Act, 65 Pa.C.S. § 1102, would be applicable. (4) If the individual would have a conflict of interest with regard to participating in deliberations or votes of \[Governmental Body 2\] \[Type of Plan\], whether the individual would be permitted to take action to break a tie vote of the other two Members of \[Governmental Body 2\] \[Type of Plan\]. Brief Answer: Section 1103(j) of the Ethics Act would permit the individual to vote to break a tie if the other two Members of \[Governmental Body 2\] would cast opposing votes on the \[Type of Plan\], provided that the individual would initially: (1) abstain from the vote; and (2) fully satisfy the disclosure requirements of Section 1103(j). Facts: You have been authorized by \[the Individual\] to request a confidential advisory from the Commission on his behalf. You have submitted facts that may be fairly summarized as follows. \[The Individual\] is a Member of \[Governmental Body 1\]. \[The Individual\] is also a Member and \[Officer\] of \[Governmental Body 2\], which consists of three Members. \[Governmental Body 1\] is composed of nine Members who are appointed by \[Governmental Body 2\]. Pursuant to \[Chapter, Section\] of the \[Political Subdivision\] \[Legislation\], \[Governmental Body 1\] has \[Powers and Duties\] as set forth in the \[Law\]. \[Governmental Body 1\] is a recommending body that reports to \[Governmental Body 2\]. \[Governmental Body 1\] \[Performs Certain Functions\]. With respect to \[Certain Matters\], \[Governmental Body 1\] may \[Make Certain Recommendations\]. \[Governmental Body 2\] takes 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, 24-516 March 14, 2024 Page 3 official action on \[Types of Matters\] after \[Governmental Body 1\] has reviewed them and made its recommendations. The \[Type of Plan\] for a large project known as the \[Name of Project\] be reviewed by \[Governmental Body 1\]. The site of the Project abuts property. The Project might harmfully impact property because of \[Certain Matters\]. Conversely, the Project might favorably impact property by increasing its value. Based upon the above submitted facts, you pose the following questions: (1) Whether \[the Individual\], as a Member of \[Governmental Body 1\], must recuse himself from participation with regard to matters involving the Project given that he serves as a Member and \[Officer\] of \[Governmental Body 2\]; (2) If \[the Individual\] must recuse himself from participating in matters before \[Governmental Body 1\] that would involve the Project, whether \[the Individual\], in his private capacity as a citizen, may express his views or submit written remarks either for or against the Project\[Type of Plan\] or its \[Type of Imposed Requirements\] during a public meeting of \[Governmental Body 1\]; (3) Whether \[the Individual\], as a Member of \[Governmental Body 2\], must recuse himself when the \[Type of Plan\] is presented to \[Governmental Body 2\] for deliberation and approval at a public meeting; (4) If \[the Individual\] must recuse himself from participating when \[Governmental Body 2\] takes action on the \[Type of Plan\] at a public meeting, whether \[the Individual\], at the public meeting and in his private capacity as a citizen, may express his views or submit written remarks concerning the approval, \[Type of Imposed Requirements\], or denial of the \[Type of Plan\]; (5) If \[the Individual\] must recuse himself from participating when \[Governmental Body 2\] \[Type of Plan\], and he does not speak \[Type of Plan\] as a private citizen during the public meeting of \[Governmental Body 2\], whether \[the Individual\] would be permitted to vote to break a tie vote of the other two Members of \[Governmental Body 2\] on the \[Type of Plan\]; and (6) If \[the Individual\] must recuse himself from participating when \[Governmental Body 2\] \[Type of Plan\], and he does speak about \[Type of Plan\] as a private citizen during the public meeting of \[Governmental Body 2\], whether \[the Individual\] would be permitted to vote to break a tie vote of the other two Members of \[Governmental Body 2\] on the \[Type of Plan\]. Discussion: Confidential Advice, 24-516 March 14, 2024 Page 4 It is initially noted that 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 of the 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 of the material facts. In responding to your inquiry, the threshold issue to be addressed is whether \[the Individual\] is a public official in his capacity as a Member of \[Governmental Body 1\] or in his capacity as a Member of \[Governmental Body 2\]. The term "public official" is defined in the Ethics Act as follows: § 1102. Definitions "Public official." Any person elected by the public or elected or appointed by a governmental body or an appointed official in the executive, legislative or judicial branch of this Commonwealth or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense or to otherwise exercise the power of the State or any political subdivision thereof. 65 Pa.C.S. § 1102. The related term Political subdivision. Any county, city, borough, incorporated town, township, school district, vocational school, county institution district, and any authority, entity or body organized by the aforementioned. 65 Pa.C.S. § 1102. position as a Member of \[Governmental Body 1\], the first portion of the definition provides that a public official is a person who is: (1) elected by the public; (2) elected or appointed by a governmental body; or (3) an appointed official in the executive, legislative or judicial branch of the Commonwealth of Pennsylvania or a political subdivision of the Commonwealth. Muscalus, Opinion 02-007. The fact that Members of \[Governmental Body 1\] are appointed by \[Governmental Body 2\] satisfies the first portion of the definition. Confidential Advice, 24-516 March 14, 2024 Page 5 In considering the remainder of the definition, the necessary conclusion is that as a Member of \[Governmental Body 1\], \[the Individual\] would fall within the statutory exclusion for members of purely advisory boards lacking authority to expend public funds other than reimbursement for personal expense or to otherwise exercise the power of the State or any political subdivision thereof. In considering the duties and responsibilities of \[Governmental Body 1\] as delineated by the \[Law\], and under the submitted facts, it is clear that \[Governmental Body 1\] is a purely advisory board. Therefore, in his capacity as a Member of \[Governmental Body 1\], \[the Individual\] is not as that term is defined by the Ethics Act. However, it is clear that as a Member of \[Governmental Body 2\], \[the Individual\] is a a Member of \[Governmental Body 2\], \[the Individual\] is subject to the provisions of the Ethics Act. 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 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), (j). Confidential Advice, 24-516 March 14, 2024 Page 6 The following terms related to Section 1103(a) are defined in the Ethics Act as follows: § 1102. Definitions 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. 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. An economic consequence which has an insignificant effect. 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. Per the PennsKistler v. State Ethics Commission, 610 Pa. 516, 22 A.3d 223 (2011), in order to violate Section 1103(a) of the Ethics Act, a public official/public employee: Confidential Advice, 24-516 March 14, 2024 Page 7 on\] to the purpose of obtaining for himself a private pecuniary benefit. Such directed action implies awareness on the part of the \[public official/public employee\] of the potential pecuniary benefit as well as the motivation to obtain that benefit for himself. Kistler, supra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics Act, a himself, his family, or his business, and then must take action in the form of one or more specific Id., 610 Pa. at 528, 22 A.3d at 231. A conflict of interest would not exist to the extent the "de minimis exclusion" 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 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; see, 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 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. Even though \[the Individual\] is a public official subject to the provisions of the Ethics Act in his capacity as a Member of \[Governmental Body 2\], because \[the Individual\] is not a public official subject to the provisions of the Ethics Act in his capacity as a Member of \[Governmental Body 1\], Section 1103(a) of the Ethics Act (pertaining to conflict of interest) would not apply to restrict him from participating in matters before \[Governmental Body 1\] that would involve the Confidential Advice, 24-516 March 14, 2024 Page 8 Project. Furthermore, because Section 1103(a) of the Ethics Act imposes restrictions upon \[the Individual\] in his public capacity as a Member of \[Governmental Body 2\] rather than upon him in his private capacity as a citizen, Section 1103(a) would not prohibit \[the Individual\], as a private citizen, from expressing his views or submitting written remarks either for or against the Project \[Type of Plan\] or its \[Type of Imposed Requirements\] during a public meeting of \[Governmental Body 1\] or from expressing his views or submitting written remarks concerning the approval, \[Type of Imposed Requirements\], or denial of the \[Type of Plan\] during a public meeting of \[Governmental Body 2\]. As a Member of \[Governmental Body 2\], \[the Individual\] generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters that would financially impact him, a member of his immediate family, or a business with which he or a member of his immediate family is associated. \[The Individual\] would have a conflict of interest with regard to participating in deliberations or votes of \[Governmental Body 2\] \[Type of Plan\] if: (1) he would be consciously aware of a private pecuniary (financial) benefit for himself, a member of his immediate family, or a business with which he or a member of his immediate family is associated; (2) his action(s) would constitute one or more specific steps to attain that benefit; and (3) neither the de minimis exclusion nor the class/subclass exclusion to the definition of conflict or conflict of interest as set forth in the Ethics Act would be applicable. The submitted facts do not enable a conclusive determination as to whether the de minimis exclusion or the class/subclass exclusion would be applicable as to any potential financial impact upon \[the Individual\]. In each instance of a conflict of interest, \[the Individual\] 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. The exception for breaking a tie vote despite a conflict of interest is available exclusively to members of three-member governing bodies of political subdivisions who first abstain and disclose their conflicts as required by Section 1103(j) of the Ethics Act. See, e.g., Pavlovic, Opinion 02-005. \[Governmental Body 2\] is a three-member governing body of a political subdivision. Therefore, regardless of whether \[the Individual\] would or would not speak about the \[Type of Plan\] as a private citizen at a public meeting of \[Governmental Body 2\], Section 1103(j) would permit \[the Individual\] to vote to break a tie if the other two Members of \[Governmental Body 2\] would cast opposing votes on \[Type of Plan\], provided that \[the Individual\] would initially: (1) abstain from the vote; and (2) fully satisfy the disclosure requirements of Section 1103(j). However, in voting to break a tie vote, \[the Individual\] could not otherwise use the authority of office, such as by advocating his view in the matter. 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. Confidential Advice,24-516 March 14, 2024 Page 9 This letter isa public recordand 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 scheduledand 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 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