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HomeMy WebLinkAbout24-553 Helfrich 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 8, 2024 To the Requester: The Honorable Michael R. Helfrich Mayor, City of York 24-553 Dear Mayor Helfrich: This responds to your letter dated July 23, 2024, by which you requested an advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the issue presented below: Issue: Whether, pursuant to Section 1103(a) of the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1103(a), you would have a conflict of interest with regard to be directed to a nonprofit corporation organized by the City for the purpose of working to reduce group/gang-related violence, where you as the City Mayor would serve on the board of directors of the nonprofit corporation. Brief Answer: NO. As the City Mayor, you generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters that would financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. As an entity organized by the City, the nonprofit corporation as defined by the Ethics Act. Therefore, the nonprofit corporation would not be considered a business with which you would be associated. Accordingly, under the submitted facts, you would not have a conflict of interest with regard to using your public position as the City Mayor to raise funds that would be directed to the nonprofit corporation for the purpose of working to reduce group/gang-related violence. Helfrich, 24-553 August 8, 2024 Page 2 Facts: You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. In 2016 the City, through its Police Department, launched the Group Violence Intervention in-related violence, foster community engagement, and provide support for high-risk individuals in order to create a safer community. The City organized the Initiative with dedicated employees as well as stakeholders in the crime prevention and law enforcement realms. The three components of the Initiative are law enforcement, community, and support and outreach, each of which serves a particular role. You have submitted a copy of the Bylaws of the Governance Committee of the Initiative Bylaws, the Governance Committee is composed of representatives from various governmental offices or e Police, a Support and Outreach Coordinator, a City-employed GVI Project Manager, and four representatives from the community. Although the Governance Committee has partnered with nonprofit organizations to help with support and outreach, some of these organizations have found the work of the Initiative to be too burdensome and distracting from their core missions. Due to the success of the Initiative, the City would like to organize the Initiative as GVI York Inc., a nonprofit corporation separate from the City. You have submitted a copy of the proposed Bylaws of GVI York Inc., which document is incorporated herein by reference. Per the proposed Bylaws, the composition of the Board of Directors of GVI York Inc. would be identical to the composition of the Governance Committee of the Initiative. GVI York Inc. would raise funds from private entities and would be supported by City funds. You ask whether the elected officials and employees who would serve on the Board of Directors of GVI York Inc., such as yourself as the City Mayor, the City Police Commissioner, the York County District Attorney, and others, would have a conflict of interest with regard to using their offices or public positions to raise funds that would be directed to GVI York Inc. for the purpose of reducing group/gang-related violence. However, you did not establish legal standing to request an advisory opinion as to the proposed conduct of anyone other than yourself. Therefore, this advisory must be limited to addressing your own prospective conduct. 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 Helfrich, 24-553 August 8, 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 Helfrich, 24-553 August 8, 2024 Page 4 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. 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. Political subdivision. Any county, city, borough, incorporated town, township, school district, vocational school, county institution district, and any authority, entity or body organized by the aforementioned. 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. ,/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 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. Helfrich, 24-553 August 8, 2024 Page 5 Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As the City Mayor, you are a public official subject to the provisions of the Ethics Act. 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, a member of your immediate family, or a business with which you or a member of your immediate family is associated. Whether you would have a conflict of interest with regard to matters that would financially impact GVI York Inc. hinges upon whether GVI York Inc. would be a or in the alternative would be a as those terms are defined by the Ethics Act. county, city, borough and any authority, entity or body organized by the aforementioned.Emphasis added.) If the City, which is itself a political subdivision, would organize the Initiative as GVI York Inc., a nonprofit corporation separate from the City, GVI York Inc. also would be a political subdivision as that term is defined by the Ethics Act. Cf., Snyder, Opinion 05-007 (the fact that a foundation organized by a school district was organized as a nonprofit corporation did not exclude the foundation from the definition of Accordingly, GVI York Inc. would not be considered a business with which you would be associated. A pecuniary (financial) benefit flowing solely to a political subdivision such as GVI York Inc. would not form the basis for a conflict of interest under Section 1103(a) of the Ethics Act. See, Confidential Opinion, 01-005; McCarrier/Anderson, Opinion 98-008; Warso, Order 974. Accordingly, because the submitted facts do not indicate the existence of a basis for a conflict of interest such as a private pecuniary benefit to you, a member of your immediate family, or a business with which you or a member of your immediate family is associated, you would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to using your public position as the City Mayor to raise funds that would be directed to GVI York Inc. for the purpose of reducing group/gang-related violence. 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. Helfrich, 24-553 August 8, 2024 Page 6 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 received at 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