HomeMy WebLinkAbout24-533 Green
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 18, 2024
To the Requester:
Jaime Green
24-533
Dear Ms. Green:
This responds to your submission received March 25, 2024, by which you requested an
advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as
to the issue presented below:
Issue:
Whether an individual employed with the Pennsylvania Department of Agriculture as a
Regional Program Outreach Coordinator would have a conflict of interest under Section
1103(a) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. §
1103(a), with regard to performing the duties of her public position, where: (1) the
individual and her husband are co-founders of an indoor urban farm; (2) before the
individual began employment with the Commonwealth, the indoor urban farm secured a
$750,000 RACP award from the Commonwealth to build a small facility in Chester
County, Pennsylvania; (3) the indoor urban farm is applying for funds from the United
States Department of Agriculture to match the RACP award; (4) an award of federal funds
may include federal grants managed by the Pennsylvania Department of Agriculture; and
(5) the individual does not oversee, manage, or advise on grant awards in her role with the
Pennsylvania Department of Agriculture.
Brief Answer: The individual would not have a conflict of interest with regard to
performing the duties of her position as a Regional Program Outreach Coordinator unless:
(1) the individual would be consciously aware of a private pecuniary (financial) benefit for
herself, her husband, or the indoor urban farm; (2) her action(s) would constitute one or
more specific steps to attain that benefit;and (3) neither of the statutory exclusions to the
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April 18, 2024
Page 2
definition of “conflict” or “conflict of interest” as set forth in Section 1102 of the Ethics
1
Act would be applicable.
Facts:
Yourequest an advisory from the Commission based upon submitted facts that may be
fairly summarized as follows.
Since October 2023, you have been employed as a Regional Program Outreach Coordinator
with the Pennsylvania Department of Agriculture. You have submitted a copy of the job
classification specifications for your Commonwealth position (job code 08480), which document
is incorporated herein by reference. In your role with the Commonwealth, you do not oversee,
manage, or advise on grant awards.
In 2019, you and your husband founded Think and Grow Farms (“the Farm”), an indoor
urban farm in Philadelphia, Pennsylvania. In 2022, the Farm began doing food processing and
manufacturing. Before you began your Commonwealth employment, the Farm secured a $750,000
RACP award from the Commonwealth to build a small facility in Chester County, Pennsylvania.
The Farm is now applying for funds from the United States Department of Agriculture to match
the RACP award. An award of federal funds may include federal grants managed by the
Pennsylvania Department of Agriculture.
The question that is posed by your advisory request is whether you would have a conflict
of interest with regard to performing the duties of your position as a Regional Program Outreach
Coordinator as a result of the Farm’s application for federal funds that may include federal grants
managed by the Pennsylvania Department of Agriculture.
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.
Section 1103(a) of the Ethics Act provides:
§ 1103. Restricted activities
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.
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April 18, 2024
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(a) Conflict of interest. -- No public official or public
employee shall engage in conduct that constitutes a conflict of
interest.
65 Pa.C.S. § 1103(a).
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.
“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 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
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April 18, 2024
Page 4
pecuniary (financial) benefit of the public official/public employeehimself, any member of his
immediate family, or a business with which he or a member of his immediate family is associated.
In each instance of a conflict of interest, the public official/public employee would be
required to abstain from participation. The abstention requirement would extend 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.
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.
Conclusion:
In applying the above provisions of the Ethics Act to the instant matter, you are advised as
follows.
As a Regional Program Outreach Coordinator for the Pennsylvania Department of
Agriculture, you are a “public employee” subject to the Ethics Act and the Regulations of the State
Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. This conclusion is based upon
the job classification specifications for your Commonwealth position, which when reviewed on an
objective basis, indicate clearly that the power exists to take or recommend official action of a
non-ministerial nature with respect to one or more of the following: contracting; procurement;
administering or monitoring grants or subsidies; planning or zoning; inspecting; licensing;
regulating; auditing; or other activity(ies) where the economic impact is greater than de minimis
on the interests of another person.
Your husband is a member of your “immediate family” as that term is defined inthe Ethics
Act. The Farm is a business with which you and your husband are associated for purposes of the
Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, you generally would have a conflict of
interest as a Regional Program Outreach Coordinator in matters that would financially impact you,
your husband, or the Farm.
The fact that the Farm is applying for federal funds that may include federal grants
managed by the Pennsylvania Department of Agriculture would not in and of itself cause you to
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April 18, 2024
Page 5
have a conflict of interest with regard to performing the duties of your Commonwealth position.
Accordingly, you are advised that you would not have a conflict of interest with regard to
performing the duties of your Commonwealth position unless: (1) you would be consciously aware
of a private pecuniary(financial)benefit for yourself, your husband, or the Farm; (2) your action(s)
would constitute one or more specific steps to attain that benefit; and (3) neither of the statutory
exclusions tothe 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 interestyou would be
required to abstain from participation.
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