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HomeMy WebLinkAbout24-520 Reasingerr.. PHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL March 15, 2024 To the Requester: The Honorable D. Pat Reasinger Mayor, City of DuBois Dear Mayor Reasinger: FACSIMILE: 717-787-0806 WEBSITE: www.ethics.oa.00v 24-520 This responds to your letters received March 1, 2024, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the issue presented below: Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et sec., would impose prohibitions or restrictions upon an individual serving as a city mayor with regard to performing the duties of his public position, where: (1) in a private capacity, the individual is the owner of a commercial printing company that prints the real estate tax bills for the county in which the city is located, provides printing services to businesses which supply the city with other types of services, and has provided printing services to the city in the past; and (2) the individual's wife operates a non-profit 501(c)(3) corporation that rescues cats in the city and is budgeted to receive a donation from the city. Brief Answer: The Ethics Act would not prohibit the individual's commercial printing company from printing the real estate tax bills for the county, providing printing services to businesses which supply the city with other types of services, or providing printing services to the city itself. The Ethics Act further would not impose prohibitions or restrictions upon the city with regard to it making its budgeted donation to the cat rescue operated by the individual's wife. However, in his capacity as the city mayor, the individual generally would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in matters before the city council that would financially Reasinger, 24-520 March 15, 2024 Page 2 Facts impact him, his commercial printing company, his wife, or the cat rescue operated by his wife. You request an advisory from the Commission based upon the following submitted facts. You were appointed as a Member of Council for the City of DuBois ("City") in May 2023, and you took office as the City Mayor in January 2024. In a private capacity, you are the owner of a commercial printing company. Your printing company provides the real estate tax bills for Clearfield County ("County"), in which the City is located. Your printing company charges the County for printing the real estate tax bills. The County then charges the City and the other municipalities located in the County for their portions of the real estate tax bills. Your printing company also provides. printing services to DuBois Area School District, an ambulance service operated by the DuBois Fire Department Chief, the business which has a contract with the City to provide commercial and residential waste services to the City, and the business that supplies the City with natural gas. Before you were appointed to City Council in May 2023, your printing company also provided printing services to the City. Your printing company ceased providing printing services to the City in order to avoid any potential conflict of interest. Your wife operates Purrfect Paws Cat Rescue (the "Cat Rescue"), a non-profit 501(c)(3) corporation that assists the City's Code Enforcement Officer with dealing with stray cats in the City. The City is budgeted to donate $7,000 to the Cat Rescue in 2024. The Cat Rescue received similar donations from the City over the last several years. Your wife has received no financial compensation from the City. Based upon the above submitted facts, you ask whether the Ethics Aci would impose prohibitions or restrictions with respect to your printing company's business dealings or the City's budgeted donation to the Cat Rescue. An additional question raised by your advisory request is whether you would have a conflict of interest under the Ethics Act with regard to participating in matters before City Council as a result of your printing company's business dealings or the Cat Rescue's receipt of donations from the City. 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: Reasinger, 24-520 March 15, 2024 Page 3 § 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 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 defiried 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 Reasinger, 24-520 March 15, 2024 Page 4 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. "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" (i.e., the "de 7'C11I =—s exclusion" and the "class/sLibelass 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 definition of the term "business" as set forth in the Ethics Act includes a non-profit corporation. Rendell v. State Ethics Commission, 603 Pa. 292, 983 A.2d 708 (2009). 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 the City Mayor, you are a public official subject to the provisions of the Ethics Act. Your printing company is a business with which you are associated as the owner. Your wife is a Reasinger, 24-520 March 15, 2024 Page 5 member of your "immediate family" as that term is defined by the Ethics Act. The Cat Rescue is a business with which your wife is associated. The Ethics Act would not prohibit your printing company from printing the real estate tax bills for the County or from providing printing services to DuBois Area School District, an ambulance service operated by the DuBois Fire Department Chief, the business which has a contract with the City to provide commercial and residential waste services to the City, and the business that supplies the City with natural gas. The Ethics Act further would not prohibit your printing company from providing printing services to the City itself. Additionally, the Ethics Act would not impose prohibitions or restrictions upon the City with regard to it making its budgeted donation to the Cat Rescue. However, in your capacity as the City Mayor, you generally would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in matters before City Council that would financially impact you, your printing company, your wife, or the Cat Rescue. 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 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. It is noted that if your printing company would provide printing services to the City itself, certain restrictions and requirements would need to be observed as to such services. Section 1103(f) of the Ethics Act, pertaining to contracting, provides as follows: § 1103. Restricted activities (f) Contract. -No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or. more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 Pa.C.S. § 1103(f). Reasiuer, 24-520 March 15, 2024 Page 6 The term "contract" is defined in the Ethics Act as follows: "Contract." An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal or real property. The term shall not mean an agreement or arrangement between the State or political subdivision as one party and a public official or public employee as the other parry, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. 65 Pa.C.S. § 1101. An agreement or arrangement whereby your printing company would perform printing services for the City would constitute a "contract" as that term is defined in the Ethics Act. The restrictions and requirements of Section 1103(f) of the Ethics Act would have to be observed as to any contract entered into between your printing company and the City that would be valued at $500 or more. 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. 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, Martin W. Harter Deputy Chief Counsel