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HomeMy WebLinkAbout24-517 ColyerPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: Joseph Colyer Dear Mr. Colyer: 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 13, 2024 24-517 This responds to your letter dated February 22, 2024, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the issue presented below: Issue: Facts: Whether the Public Official and Employee Ethics Act ("Ethics Act''), 65 Pa.C.S. § 1101, et sec ., would impose prohibitions or restrictions upon you with regard to being appointed as a Member of the Pocono Mountain Regional Police Commission, where in a private capacity, you own a local towing company that handles calls for towing and roadside assistance services from police officers of the Pocono Mountain Regional Police Department. Brief Answer: The Ethics Act would not prohibit you from being appointed as a Member of the Pocono Mountain Regional Police Commission. However, if you would be appointed to that position, Section 1103(a) of the Ethics Act, pertaining to conflict of interest, would prohibit you from using the authority of your public position as a Member of the Pocono Mountain Regional Police Commission or confidential information accessed or received as a result of being in that position in furtherance of your or your towing company's business interests. You request an advisory from the Commission based on the following submitted facts. Colyer, 24-517 March 13, 2024 Page 2 You are a Supervisor for Tobyhanna Township ("Township"). There are two seats on the Pocono Mountain Regional Police Commission ("Regional Police Commission") that need to be filled by Township Supervisors. The Regional Police Commission provides police coverage to the Township and other townships through the Pocono Mountain Regional Police Department ("Regional Police Department"). In a private capacity, you own a local towing company that provides services to multiple townships, some of which receive police coverage from the Regional Police Department. Your towing company handles calls from police officers of the Regional Police Department for towing and roadside assistance services in a coverage area assigned to your towing company by the Regional Police Department. The coverage policies put in place by the Regional Police Department are followed by police officers who are assisting the public when responding to vehicle -related emergencies. Your towing company does not receive any type of special treatment from the Regional Police Department while in the course of doing business in the coverage area assigned to it. You seek guidance as to whether the Ethics Act would impose any prohibitions or restrictions upon you with regard to being appointed as a Member of the Regional Police Commission. 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 Colyer, 24-517 March 13, 2024 Page 3 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), 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. Colyer, 24-517 March 13, 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" (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. 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. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As a Township Supervisor, you are a public official subject to the provisions of the Ethics Act. Your towing company is a business with which you are associated as the owner. The Ethics Act would not prohibit you from being appointed as a Member of the Regional Police Commission. If you would be appointed as a Member of the Regional Police Commission, you would in that capacity also be a public official subject to the provisions of the Ethics Act. Section 1103(a) of the Ethics Act, pertaining to conflict of interest, imposes restrictions upon public officials and public employees in their public capacities and not their private capacities. Therefore, Section 1103(a) of the Ethics Act would not prohibit you, in your private capacity, from continuing to provide towing services through your towing company in response to calls from police officers of the Regional Police Department for towing and roadside assistance services. However, Section 1103(a) of the Ethics Act would prohibit you from using the authority of your public position as a Member of the Regional Police Commission or confidential information accessed or received as a result of being in that position in furtherance of your or your towing company's business interests. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Colyer, 24-517 March 13, 2024 Page 5 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. 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