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PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806
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613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL
August 5, 2024
To the Requester:
24-552
This responds to your letter dated July 23, 2024, by which you requested a confidential
advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as
to the general issue presented below:
Issue:
Whether, pursuant to Section 1103(a) ofthe Public Official and Employee Ethics Act
(“Ethics Act”), 65 Pa.C.S. § 1103(a), a township supervisor, whose \[Relative\] is employed
part-time with a company that operates \[Various Facilities\] in the township, would have a
conflict of interest with regard to participating in discussions, votes, or other actions of the
township board of supervisors pertaining to land development matters involving or
affecting the company.
Brief Answer: YES. Because the company is a business with which the township
supervisor’s \[Relative\] is associated in her capacity as an employee, the township
supervisor generally would have a conflict of interest under Section 1103(a) of the Ethics
Act with regard to participating in discussions, votes, or other actions of the township board
of supervisors pertaining to land development mattersinvolving or affecting the company.
Facts:
You request aconfidential advisory from the Commission based upon the following
submitted facts.
You are a Supervisor for a township (“the Township”). Your \[Relative\] is employed part-
time in a non-management, non-officer position in the \[Department\] of a company (“the
Company”), which owns and operates \[Various Facilities\] in the Township. The site where the
Confidential Advice, 24-552
August 5, 2024
Page 2
Company is located continues to be developed as a \[Type of Development\] with a \[Type of Plan\].
The Company is a signatory to the \[Type of Plan\]. The majority of the lots remaining in the \[Type
of Plan\] are not owned by the Company.
Based upon the above submitted facts, you pose the following questions:
(1) Whether you would have a conflict of interest with respect to participating in an
official action of the Township Board of Supervisors regarding \[Types of Land
Development Matters\] involving the Company;
(2) Whether the Company’s status as a signatory to the \[Type of Plan\] would cause you
to have a conflict of interest with respect to matters involving the development of
lots in the \[Type of Plan\] that are not owned by the Company; and
(3) Whether you would have a conflict of interest with respect to participating in
matters related to the creation of a \[Type of Area\] that would include property
owned by the Company.
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
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August 5, 2024
Page 3
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, whereone
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.
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August 5, 2024
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“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, 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.
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.
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August 5, 2024
Page 5
As a Township Supervisor, you are a public official subject to the provisions of the Ethics
Act.Your \[Relative\] is a member of your “immediate family” as that term is defined in the Ethics
Act. The Company is a business with which your \[Relative\] is associated in her capacity as an
employee, regardless of her “level” of employment. See, Rubenstein, Opinion 01-007.
You generally would have a conflict of interest under Section 1103(a) of the Ethics Act
with regard to matters before the Township Board of Supervisors that would financially impact
you, your \[Relative\], or the Company. You specifically would have a conflict of interest with
regard to participating in discussions, votes, or other actions of the Township Board of Supervisors
pertaining to \[Types of Land Development Matters\] involving the Company or its
facilities/operations.
The Company’s status as a signatory to the \[Type of Plan\] in and of itself would not cause
you to have a conflict of interest with respect to matters involving the development of lots in the
\[Type of Plan\] that are not owned by the Company. Similarly, the Company’s ownership of
property that would be included in a \[Type of Area\] in and of itself would not cause you to have a
conflict of interest with respect to the creation of the \[Type of Area\]. Accordingly, you are advised
that you would not have a conflict of interest with regard to matters involving the development of
lots in the \[Type of Plan\] that are not owned by the Company or the creation of a \[Type of Area\]
that would include property owned by the Company unless: (1) you would be consciously aware
of a private pecuniary (financial) benefit for yourself, your \[Relative\], or the Company; (2) your
action(s) would constitute one or more specific steps to attain that benefit; and (3) neither of the
statutory exclusions to the definition of “conflict” or “conflict of interest” as set forth in the Ethics
Act would be applicable.
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
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
Confidential Advice,24-552
August 5, 2024
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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