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HomeMy WebLinkAbout24-549 Guiddy 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 July 22, 2024 To the Requester: Melissa A. Guiddy, Esquire 24-549 Dear Ms. Guiddy: This responds to your letter dated July 8, 2024, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to theissue presented below: Issue: Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would prohibit an individual employed as the Westmoreland County (“County”) Parks and Recreation Director, who also serves as a Member and President of the Board of Directors of the Regional Trail Corporation, from providing Executive Director services to the Regional Trail Corporation either: (1) in his capacity as the County Parks and Recreation Director pursuant to the terms of a written cooperation agreement between the County and the Regional Trail Corporation; or (2) in the capacity of an employee of the Regional Trail Corporation. Brief Answer: NO. The Ethics Act would not prohibit the individual from providing Executive Director services to the Regional Trail Corporation in either capacity. However, in his capacity as a Member and President of the Board of Directors of the Regional Trail Corporation, the individual generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters that would financially impact him with respect to his provision of Executive Director services to the Regional Trail Corporation as either a County employee or a Regional Trail Corporation employee. Guiddy, 24-549 July 22, 2024 Page 2 Facts: As the Chief County Solicitor, you have been authorized by Brandon Simpson (“Mr. Simpson”) to request an advisory from the Commission on his behalf. You have submitted facts that may be fairly summarized as follows. Mr. Simpson has been employed as the County Parks and Recreation Director since March 2013. You have submitted a copy of an official position description for Mr. Simpson’s position with the County, which document is incorporated herein by reference. Mr. Simpson’s job duties include planning, organizing, and directing the activities of the County Parks and Recreation Department with respect to the design, acquisition, construction, and maintenance of the County parks and trails, developing and implementing a parks development plan that coordinates projects and funding from various sources, and serving on boards and commissions associated with parks, trails, conservation, and open space. In 1991 the County, Allegheny County, and Fayette County created a 501(c)(3) corporation, the Regional Trail Corporation, to promote the conversion of 43 miles of abandoned railroad rights-of-way in the three counties into recreational trails. The Board of Directors (“Board”) of the Regional Trail Corporation consists of 18 Members, nine of whom are appointed by the three counties and nine of whom are elected at large by the Board. Mr. Simpson has served as a Member of the Board as an appointee of the County since 2018, and he currently servesas President of the Board. As a result of term limits set forth in the Bylaws of the Regional Trail Corporation, Mr. Simpson’s term as a Member and President of the Board will expire at the end of 2024. From 1993 to 2021 the Regional Trail Corporation employed a Business Manager. When the Business Manager retired in 2021, the Board of the Regional Trail Corporation decided to hire an Executive Director to oversee the growing organization. You have submitted a copy of a position description for the position of Executive Director, which document is incorporated herein by reference. The Regional Trail Corporation currently employs an Executive Director, a part- time Administrative Assistant, and several part-time workers for its Visitors Center in West Newton, Pennsylvania. The question that is posed by your advisory request is whether the Ethics Act would permit Mr. Simpson to provide Executive Director services to the Regional Trail Corporation either: (1) in his capacity as the County Parks and Recreation Director pursuant to the terms of a written cooperation agreement between the County and the Regional Trail Corporation; or (2) in the capacity of an employee of the Regional Trail Corporation. 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 Guiddy, 24-549 July 22, 2024 Page 3 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 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 Guiddy, 24-549 July 22, 2024 Page 4 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. 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” or 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 employeehimself, 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 the County Parks and Recreation Director, Mr. Simpson is a public employee subject to the provisions of the Ethics Act. As a Member and President of the Board of the Regional Trail Corporation, Mr. Simpson is a public official subject to the provisions of the Ethics Act. If Mr. Simpson would become employed with the Regional Trail Corporation as its Executive Director, he would in that capacity be a public employee subject to the provisions of the Ethics Act. The Ethics Act would not prohibit Mr. Simpson from providing Executive Director services to the Regional Trail Corporation either: (1) in his capacity as the County Parks and Recreation Director pursuant to the terms of a written cooperation agreement between the County and the Regional Trail Corporation; or (2) in the capacity of an employee of the Regional Trail Corporation. However, in his capacity as a Member and President of the Board of Directors of the Regional Trail Corporation, Mr. Simpson generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters that would financially impact him with respect to his provision Guiddy, 24-549 July 22, 2024 Page 5 of Executive Director services to the Regional Trail Corporation as either a County employee or a Regional Trail Corporation employee. Mr. Simpson specifically would have a conflict of interest with regard to participating in or voting in favor of: (1) the executionor adoptionof a written cooperation agreement that would pay him compensation for providing Executive Director services to the Regional Trail Corporation; or (2) the hiring of himself as the Executive Director of the Regional Trail Corporation. In each instance of a conflict of interest, Mr. Simpson would be required to abstain from participation, which would includevoting 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. 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