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PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806
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HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL
September 5, 2024
To the Requester:
24-559
This responds to your letter dated August 9, 2024, by which you requested a confidential
advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as
to the issue presented below:
Issue:
Whether an individual serving as the \[Position\] of the \[Office\] of the \[Commonwealth
Agency\], whose husband is employed with \[Name of Corporation\] (“the Corporation”),
would have a conflict of interest pursuant to Section 1103(a) of the Public Official and
Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), with regard to participating in
direct interactions with representatives of the Corporation to discuss any concerns or
suggestions that the Corporation might have with regard to legislative matters.
Brief Answer: The Corporation is a business with which the individual’s husband is
associated in his capacity as an employee. The individual generally would have a conflict
of interest in her capacity as the \[Position\] of the \[Office\] in matters that would financially
impact her, her husband, or the Corporation. The individual would have a conflict of
interest with regard to participating in direct interactions with representatives of the
Corporation to discuss any concerns or suggestions that the Corporation might have with
regard to legislative matters if: (1) the individual would be consciously aware of a private
pecuniary (financial) benefit for herself, her husband, or the Corporation; (2) her 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
1
Section 1102 of the Ethics Act would be applicable.
1
Action that has a de minimis (insignificant) economic impact or that 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, does not constitute
a conflict of interest.
Confidential Advice, 24-559
September 5, 2024
Page 2
Facts:
Yourequest a confidential advisory from the Commission based upon submitted facts, the
material portion of which may be fairly summarized as follows.
You are employed as the \[Position\] of the \[Office\] of the \[Commonwealth Agency\]. Your
position reports to both the \[Public Official\] as the agency head of the \[Commonwealth Agency\]
and \[a Certain Commonwealth Entity\]. In your role with the \[Commonwealth Agency\], you are
responsible for monitoring the progress of \[Type of Legislation\] that could have an impact on the
\[Commonwealth Agency\]. You perform work related to advancing the administration’s legislative
proposals, and you manage the analysis of legislation to determine the operational, legal, and fiscal
impact on the \[Commonwealth Agency\]as well as any potential impact on \[Certain Parties\]. You
engage in regular communications with various parties, including \[Certain Entities\] and their
government relations employees, and you coordinate the flow of information from legislative
stakeholders to various decision-makers in the \[Commonwealth Agency\] and the \[Commonwealth
Office\]. All of your work is directed and related to the \[Type of Industry\] generally as a whole
and not to any particular \[Entity or Group Within the Type of Industry\].
Your husband is employed in the position of \[Position Title\] with the Corporation, which
is a \[Type of Entity\] domiciled in Pennsylvania and a major participant in the \[Commonwealth
Agency’s\] regulated community. Your husband’s job duties are related to \[a Particular Area of
Work\].
At the initiation of your employment with the \[Commonwealth Agency\], you fully
disclosed your husband’s employment with the Corporation, and the \[Commonwealth Agency’s\]
\[Unit\] and the \[Public Official\] and his Chief of Staff implemented certain safeguards to avoid the
appearance of any impropriety given your husband’s employment with the Corporation. In order
to avoid any appearance of a conflict of interest or a potential conflict of interest, the
\[Commonwealth Agency\] has required you to fully abstain from any matter involving any
decision-making or recommendations that would relate solely to the Corporation as opposed to the
\[Type of Industry\] generally. You are required to abstain from involvement in the decision-making
on any transactions or orders that relate solely to the Corporation, attendance at meetings and
events involving or solely related to the Corporation, and any other tasks, duties, or responsibilities
that would directly and solely impact the Corporation. Any matters from which you must abstain
are to be referred to and handled exclusively by your \[Subordinate\].
You state that while you have adhered to the safeguards outlined above, the restrictions
related to avoiding any individual meetings with representatives of the Corporation or talking
about issues related only to the Corporation have made it increasingly more difficult for you to
fully perform the duties of your position to the best of your abilities. Although your \[Subordinate\]
has been able to serve in the role of the \[Commonwealth Agency’s\] liaison to the Corporation, you
and the senior staff of the \[Commonwealth Agency\] do not want to slight the Corporation in its
access to the \[Commonwealth Agency\] and the \[Commonwealth Agency’s\] legislative discussions
by making the Corporation deal exclusively with the \[Subordinate\]. In addition, there are concerns
that since the Corporation cannot share its views on legislative matters with you, the Corporation
Confidential Advice, 24-559
September 5, 2024
Page 3
might instead go directly to the \[Public Official\], thereby creating an undue burden for the \[Public
Official\] and possibly creating the appearance of favored treatment for the Corporation.
Based upon the above submitted facts, you seek guidance as to whether the Ethics Act
would impose any restrictions upon you with regard to having interactions with the Corporation
and its representatives. In particular, you ask whether you would have a conflict of interest with
regard to having direct interactions with representatives of the Corporation to discuss any concerns
or suggestions that the Corporation might have with regard to legislative matters, and whether it
would make a difference if those interactions were one on one or if someone else from your office
participated in those interactions.
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:
§ 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
Confidential Advice, 24-559
September 5, 2024
Page 4
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.
“De minimis economic impact.” An economic
consequence which has an insignificant effect.
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” and 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 employee himself, any member of his
immediate family, or a business with which he or a member of his immediate family is associated.
In each instance of a conflict of interest, the public official/public employee would be
required to abstain from participation. The abstention requirement would extend 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.
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.
Confidential Advice, 24-559
September 5, 2024
Page 5
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.
A conflict of interest would not exist to the extent the "de minimis exclusion" or the
“class/subclass” exclusion set forth within the Ethics Act’s definition of the term "conflict" or
"conflict of interest" would be applicable.
The de minimis exclusion precludes a finding of conflict of interest as to an action having
a de minimis (insignificant) economic impact.Thus, when a matter that would otherwise constitute
a conflict of interest under the Ethics Act would have an insignificant economic impact, a conflict
would not exist and Section 1103(a) of the Ethics Act would not be implicated. See, Kolb, Order
1322; Schweinsburg, Order 900. The Commission has determined the applicability of the de
minimis exclusion on a case-by-case basis, considering all relevant circumstances.In the past, the
Commission has found amounts up to approximately $1,200 to be de minimis.
In order for the class/subclass exclusion to apply, two criteria must be met: (1) the affected
public official/public employee, immediate family member, or business with which the public
official/public employee or immediate family member is associated must be a member of a class
consisting of the general public or a true subclass consisting of more than one member; and (2) the
public official/public employee, immediate family member, or business with which the public
official/public employee or immediate family member is associated must be affected "to the same
degree" (in no way differently) than the other members of the class/subclass. 65 Pa.C.S. § 1102;
see, Kablack, Opinion 02-003; Rubenstein, Opinion 01-007. The first criterion of the exclusion is
satisfied where the members of the proposed subclass are similarly situated as the result of relevant
shared characteristics. The second criterion of the exclusion is satisfied where the
individual/business in question and the other members of the class/subclass are reasonably affected
to the same degree by the proposed action. Kablack, supra.
Conclusion:
In applying the above provisions of the Ethics Act to the instant matter, you are advised as
follows.
As the \[Position\]of the \[Office\] of the \[Commonwealth Agency\], you are a “public
employee” subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65
Pa.C.S. § 1102; 51 Pa. Code § 11.1. Your husband is a member of your “immediate family” as
that term is defined in the Ethics Act. The Corporation is a business with which your husband is
associated as an employee. Pursuant to Section 1103(a) of the Ethics Act, you generally would
have a conflict of interest as the \[Position\]of the \[Office\] in matters that would financially impact
you, your husband, or the Corporation.
You are advised that you would have a conflict of interest with regard to participating in
interactions with representatives of the Corporation, including direct interactions with
Confidential Advice, 24-559
September 5, 2024
Page 6
representatives of the Corporation to discuss any concerns or suggestions that the Corporation
might have with regard to legislative matters, if: (1) you would be consciously aware of a private
pecuniary(financial)benefit for yourself, your husband, or the Corporation; (2) your action(s)
would constitute one or more specific steps to attain that benefit; and (3) neither the de minimis
exclusion nor the class/subclass exclusion to the definition of “conflict” or “conflict of interest” as
set forth in Section 1102 of the Ethics Actwould be applicable. Whether your interactions with
representatives of the Corporation would be on a one-to-one basis or whether someone else from
your office would participate in those interactions would not be a relevant factor in determining
the existence or non-existence of a conflict of interest. As noted above, in each instance of a
conflict of interest you would be required to abstain from participation.
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