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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
April 3, 2024
To the Requester:
Thomas J. Gilbride, Esquire
Dear Mr. Gilbride:
24-528
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 the issue
presented below:
Issue:
Whether a member of a city council, who owns an HVAC company that is required to
obtain permits and licenses from the city in order to do business in the city, 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 participating in discussions or
votes of city council on matters involving the city licensing, inspections and permitting
department or on legislation which may impact that department.
Brief Answer: The city council member would not have a conflict of interest and would
not violate Section 1103(a) of the Ethics Act by participating in discussions or votes of city
council on matters involving the city licensing, inspections and permitting department or
on legislation which may impact that department unless: (1) the city council member 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, such as his HVAC company; (2) his action(s) would constitute one or more
specific steps to attain that benefit; and (3) neither of the statutory exclusions to the
Gilbride, 24-528
April 3, 2024
Page 2
definition of "conflict" or "conflict of interest" as set forth in Section 1102 of the Ethics
Act would be applicable. i
Facts:
You have been authorized by Gerald Smurl ("Mr. Smurl") to request an advisory from the
Commission on his behalf. You have submitted facts that may be fairly summarized as follows.
Mr. Smurl is a Member of Council for the City of Scranton ("City"). In a private capacity,
Mr. Smurl owns an HVAC company. Mr. Smurl's HVAC company is required to obtain permits
and licenses from the City licensing, inspections and permitting department in order to do business
in the City. At a recent City Council meeting, a member of the public suggested that Mr. Smurl
should not be involved in any City Council discussions or votes regarding the City licensing,
inspections and permitting department or any City Council discussions or votes on legislation
which may impact that department.
You ask whether Mr. Smurl would have a conflict of interest with regard to participating
in discussions or votes of City Council on matters involving the City licensing, inspections and
permitting department or on legislation which may impact that department.
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
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.
Gilbride, 24-528
April 3, 2024
Page 3
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 bled 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.
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April 3, 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.
"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.
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.
Per the Pennsylvania Supreme Court's decision in Kistler 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:
... must act in such a way as to put his [office/public position] 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
public official/public employee "must be consciously aware of a private pecuniary benefit for
himself, his family, or his business, and then must take action in the form of one or more specific
steps to attain that benefit." 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/subclass" exclusion set forth within the Ethics Act's definition of the term "conflict" or
"conflict of interest" would be applicable.
Gilbride, 24-528
April 3, 2024
Page 5
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.
As a Member of City Council, Mr. Smurl is a public official subject to the provisions of
the Ethics Act. Mr. Smurl's HVAC company is a business with which Mr. Smurl is associated as
the owner. Pursuant to Section 1103(a) of the Ethics Act, Mr. Smurl generally would have a
conflict of interest in his capacity as a City Council Member in matters that would financially
impact him or his HVAC company.
Mr. Smurl would not have a conflict of interest and would not violate Section 1103(a) of
the Ethics Act by participating in discussions or votes of City Council on matters involving the
City licensing, inspections and permitting department or on legislation which may impact that
department unless: (1) Mr. Smurl 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, such as his HVAC company; (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.
As noted above, in each instance of a conflict of interest Mr. Smurl 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.
Gilbride, 24-528
April 3, 2024
Page 6
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,
Bridget K. Guilfoyle
Chief Counsel