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Home My WebLink About24-536 Jumper 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 19, 2024 To the Requester: Ronald N. Jumper Chief Counsel Democrat Legal Staff 535 E. Main Capitol Harrisburg, PA 17120 24-536 Dear Mr. Jumper: This responds to your letter dated April 4, 2024, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the general issue presented below: Issue: Whetherthe Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon astate legislator in her capacity as a public official as a result of the state legislator’s private activity as a co-owner along with her husband of a company that provides services to various municipalities, some of which may be located in the senatorial district that the state legislator represents. Brief Answer: Section 1103(a) of the Ethics Act (pertaining to public officials/public employees and conflict of interest) would not impose restrictions upon the state legislator’s private activity as a co-owner of the company or upon the activities of the company itself. Pursuant to Section 1103(a) of the Ethics Act, in her capacity as a public official, the state legislator generally would be prohibited from using the authority of her public position to effectuate a private pecuniary (financial) benefit to herself, her husband, or the company. However, Section 1103(a) of the Ethics Act would not apply to the state legislator insofar as her activities would constitute “legislative actions” (introducing, considering, debating, voting, enacting, adopting, or approving legislation). Jumper, 24-536 April 19, 2024 Page 2 Facts: You request an advisory from the Commission on behalf of Pennsylvania State Senator Carolyn T. Comitta (“Senator Comitta”). You have submitted facts that may be fairly summarized as follows. Senator Comitta and her husband own Thomas Comitta Associates, Inc. (“the Company”), which provides municipal planning and landscape architectural services to multiple municipalities in southeastern Pennsylvania, some of which may be located in the Senatorial District that Senator Comitta represents. The relevant statutory requirements for the advertisement, consideration, review, and award of bids or contracts are followed by local government officials with respect to the contracts bid on or awarded to the Company. In her role as a Pennsylvania State Senator, Senator Comitta is not responsible for and does not have the authority to take any official action on the issuance of municipal contracts for services. You ask whether the Ethics Act would impose any prohibitions or restrictions upon Senator Comitta as a result of her ownership of the Company. You further seek guidance as to whether, due to Senator Comitta’s ownership of and affiliation with the Company, the Ethics Act would prohibit the Company from bidding on or being awarded contracts from municipalities located in Senator Comitta’s Senatorial District. You additionally ask whether the Ethics Act would prohibit the Company from bidding on or being awarded contracts for municipal projects that may be funded in part by grants or loans from the Commonwealth, a county, or another governmental entity. 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 (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: Jumper, 24-536 April 19, 2024 Page 3 § 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. Section 1103(a) of the Ethics Act restricts public officials/public employees in their public capacities, not their private capacities. Subject to the statutory exclusions to the Ethics Act’s definition of the term “conflict” or “conflict of interest,” 65 Pa.C.S. § 1102, pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is prohibited from using the authority of public office/employment 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. Jumper, 24-536 April 19, 2024 Page 4 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. To the extent the activities of a state legislator relate to “legislative actions” (introducing, considering, debating, voting, enacting, adopting, or approving legislation), they are constitutionally controlled and are exempt from the purview of the Ethics Act and the Commission. See, Mann, Opinion 07-005; Confidential Opinion, 05-002; Corrigan, Opinion 87-001. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. In her capacity as a Member of the Pennsylvania Senate, Senator Comitta is a public official subject to the provisions of the Ethics Act. Senator Comitta’s husband is a member of her “immediate family” as that term is defined by the Ethics Act. The Company is a business with which Senator Comitta and her husband are associated in their capacities as owners. Section 1103(a) of the Ethics Act, which imposes restrictions upon public officials and public employees, does not apply to restrict the conduct of businesses. Therefore, the Ethics Act would not prohibit the Company from bidding on or being awarded contracts from municipalities located in Senator Comitta’s Senatorial District or from bidding on or being awarded contracts for municipal projects that may be funded in part by the Commonwealth, a county, or another governmental entity. Pursuant to Section 1103(a) of the Ethics Act, in her capacity as a Member of the Pennsylvania Senate, Senator Comitta generally would be prohibited from using the authority of her public position to effectuate a private pecuniary (financial) benefit to herself, her husband, or the Company. However, Section 1103(a) of the Ethics Act would not apply to Senator Comitta insofar as her activities would constitute legislative actions. Section 1103(a) of the Ethics Act would prohibit Senator Comitta from using her status as a state legislator in furtherance of the Company’s business interests. See, Confidential Opinion, 05-002; Confidential Opinion, 05-009. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Jumper, 24-536 April 19, 2024 Page 5 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