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HomeMy WebLinkAbout24-551 Laird 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 August 2, 2024 To the Requester: Holly A. Laird 24-551 Dear Ms. Laird: This responds to your letter dated July 16, 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 impose prohibitions or restrictions upon a business owned by an individual serving as the District Manager of the Armstrong Conservation District and her husband with regard to doing concrete work on Agricultural Conservation Assistance Program projects for farmers. Brief Answer: NO. The Ethics Act would not impose prohibitions or restrictions upon the business owned by the individual and her husband with regard to doing concrete work on Agricultural Conservation Assistance Program projects for farmers. However, in her capacity as the District Manager of the Armstrong Conservation District, the individual generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters that would financially impact her, her husband, or their business. Facts: You request an advisory from the Commission based upon the following submitted facts. You are employed as the District Manager of the Armstrong Conservation District (“Conservation District”). You have submitted a copy of a job description for your position with the Conservation District, which document is incorporated herein by reference. Laird, 24-551 August 2, 2024 Page 2 In your capacity as the District Manager of the Conservation District, you are directly involved in the Agricultural Conservation Assistance Program (“ACAP”), which is administered through the State Conservation Commission. An Agricultural Technician handles the majority of ACAP. You previously served on the ACAP Local Advisory Board, which assists in ranking projects and makes recommendations to the Conservation District Board of Directors as to which projects should receive funding. The Conservation District Board of Directors gives final approval as to the funding of projects. You and your husband own Wick City Concrete, LLC (“the Company”), which is a concrete contractor. Some of the farmers that the Conservation District is working with have stated that they would like the Company to bid on the concrete work for their ACAP projects. The farmers would be responsible for soliciting their own bids for the concrete work and providing appropriate documentation to the Conservation District. You seek guidance as to whether the Ethics Act would impose any prohibitions or restrictions upon the Company with regard to submitting bids and being awarded contracts to do concrete work for local farmers on their ACAP projects. 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 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 Laird, 24-551 August 2, 2024 Page 3 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. “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. Laird, 24-551 August 2, 2024 Page 4 65 Pa.C.S. § 1102. Section 1103(a) of the Ethics Act, pertaining to conflict of interest, imposes restrictions upon public officials and public employees, and not their immediate family members or businesses. Subject to the statutory exclusions to the Ethics Act’s definition of the term “conflict” or “conflict of interest,” 65 Pa.C.S. § 1102, a public official/public employeeis 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 the District Manager of the Conservation District, you are a public employee subject to the provisions of the Ethics Act. Your husband is a member of your “immediate family” as that term is defined in the Ethics Act. The Company is a business with which you and your husband are associated in your capacities as owners. The Ethics Act would not prohibit the Company from submitting bids and being awarded contracts to do concrete work for local farmers on their ACAP projects. However, in your capacity as the District Manager of the Conservation District, you generally would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to matters that would financially impact you, your husband, or the Company. In particular, you would have a conflict of interest with regard to performing any job duties involving ACAP that would result in a private pecuniary (financial) benefit to the Company. In each instance of a conflict of interest, you 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. 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 Laird, 24-551 August 2, 2024 Page 5 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