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Home My WebLink About24-530 Sheehan-Westrick 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 5, 2024 To the Requester: Cindy Sheehan-Westrick 24-530 Dear Ms. Sheehan-Westrick: This responds to your letter dated March 15, 2024, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the issue presented below: Issue: Whethera school director for a school district 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 the school district school board on awarding a contract for school photography services, where: (1) the school director’s sister-in-law, who is the sole proprietor of a photography business, has submitted a proposal to provide such services; (2) the school director is not affiliated with her sister- in-law’s photography business; and (3) the school director is in the process of starting an unrelated photography business with her sister-in-law that would not do any work for the school district. Brief Answer: NO. Pursuant to Section 1103(a) of the Ethics Act, the school director would have a conflict of interest in matters that would financially impact her, a member of her immediate family, or a business with which she or a member of her immediate family is associated. Because the school director’s sister-in-law is not a member of the school director’s “immediate family” as that term is defined by the Ethics Act, the school director would not have a conflict of interest in matters that would financially impact only her sister- in-law or her sister-in-law’s photography business. There is no basis in the submitted facts to conclude that the school director would have a conflict of interest with regard to participating in discussions or votes of the school district school board on awarding a Sheehan-Westrick, 24-530 April 5, 2024 Page 2 contract for school photography services to her sister-in-law or another photographer/photography business. Facts: You request an advisory from the Commission based upon the following submitted facts. You are a School Director for Penn Cambria School District (“School District”). The School District recently issued a request for proposals for the provision of school photography services. The proposals received will be reviewed by the School District School Board and voted on during a public meeting. Your sister-in-law operates a photography business named “Mandy Westrick Photography” as a sole proprietor. You are not affiliated with your sister-in-law’s photography business. Your sister-in-law has submitted a proposal for the provision of school photography services to the School District. You and your sister-in-law are in the process of starting a photography business named “Westrick Photography,” which will be a limited liability company. This photography business will not do any work for the School District. The question that is posed by your advisory request is whether you would have a conflict of interest as a School Director with regard to participating in discussions or votes of the School District School Board on the proposals for the provision of school photography services received from your sister-in-law and other photographers/photography businesses. 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 Sheehan-Westrick, 24-530 April 5, 2024 Page 3 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), 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. Sheehan-Westrick, 24-530 April 5, 2024 Page 4 “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. “Immediate family.” A parent, spouse, child, brother or sister. 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 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 School Director for the School District, you are a public official subject to the provisions of the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, you generally would have a conflict of interest in matters before the School District School Board that would financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. (It is noted that the photography business that you and your sister-in-law are starting, Westrick Photography, will be a business with which you are associated once it is established.) Your sister-in-law is not a member of your “immediate family” as that term is defined in the Ethics Act. Because your sister-in-law is not a member of your immediate family, you would not have a conflict of interest in matters that would financially impact your sister-in-law or her Sheehan-Westrick, 24-530 April 5, 2024 Page 5 photography business, Mandy Westrick Photography,but that would not financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. There is no basis in the submitted facts to conclude that the award of a contract for school photography services to your sister-in-law/her photography businessor another photographer/photography business would financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. Accordingly, based upon the submitted facts, you are advised that you would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in discussions or votes of the School District SchoolBoard on awarding a contract for school photography services to your sister-in-law/her photography business or another photographer/photography business. (The Ethics Act would not impose prohibitions or restrictions upon your sister-in-law/her photography business with respect to entering into a contract with the School District for the provision of school photography services.) 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 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