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HomeMy WebLinkAbout24-524 Logsdon 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 April 2, 2024 To the Requester: Sean W. Logsdon, Esquire 24-524 Dear Mr. Logsdon: This responds to your letter dated March 13, 2024, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to theissue presented below: Issue: Whether, pursuant to Section 1103(a) ofthe Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), an individual serving as a borough council member would have a conflict of interest with regard to voting on matters pertaining to an association that operates an emergency medical service which provides services to the borough and surrounding communities, where in a private capacity, the individual is a member of the board of directors of the association. Brief Answer: The individual generally would have a conflict of interest under Section 1103(a) of the Ethics Act in his capacity as a borough council member with regard to voting on matters that would financially impact the association, which is abusiness with which the individual is associated in his capacity as a director. Facts: Youhave been authorized by Frank Kislan (“Mr. Kislan”) to request an advisory from the Commission on his behalf. You have submitted facts that may be fairly summarized as follows. Mr. Kislan is a Member of Council for Freeland Borough (“the Borough”). In a private capacity, Mr. Kislan is a Member of the Board of Directors of the Freeland Northside Community Logsdon, 24-524 April 2, 2024 Page 2 Ambulance Association (“the Association”), which operates an emergency medical service that provides services to the Borough and surrounding communities. Mr. Kislan is not compensated for serving on the Association’s Board of Directors. Matters that relate to or impact the Association may at times come before Borough Council. For example, Borough Council votes to appoint the Association as its first call emergency medical service. Additionally, in the past, Borough Council has voted to allocate tax millage for emergency services. There may also be times when the Borough applies for grants or enters into transactions with or for the betterment of the Association. Based upon the above submitted facts, you ask whether Mr. Kislan would have a conflict of interest with regard to voting on matters before Borough Council that would pertain to or affect the Association. You question whether the existence or non-existence of a conflict of interest would depend upon the nature of the matter before Borough Council or the fact that Mr. Kislan receives no pay for serving as a Member of the Association’s Board of Directors. 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 (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 Logsdon,24-524 April 2, 2024 Page 3 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. “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. “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. Logsdon, 24-524 April 2, 2024 Page 4 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 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. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As a Borough Council Member, Mr. Kislan is a public official subject to the provisions of the Ethics Act. The Association is a business with which Mr. Kislan is associated as aDirector. Pursuant to Section 1103(a) of the Ethics Act, Mr. Kislan generally would have a conflict of interest in his capacity as a Borough Council Member in matters that would financially impact him or the Association. Mr. Kislan specifically would have a conflict of interest with regard to voting to appoint the Association as the Borough’s first call emergency medical service, voting on applications for grants that would financially impact the Association, or voting on transactions with or for the betterment of the Association. Mr. Kislan further would have a conflict of interest with respect to voting on the allocation of tax millage for emergency services to the extent that such allocation would financially benefit the Association. The fact that Mr. Kislan does not receive compensation for serving as a Member of the Association’s Board of Directors would not be relevant to a determination as to whether he would have a conflict of interest in a matter involving the Association. In each instance of a conflict of interest, Mr. Kislan 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 theevent 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. Logsdon, 24-524 April 2, 2024 Page 5 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 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