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HomeMy WebLinkAbout24-565 VanderKamPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov ADVICE OF COUNSEL September 27, 2024 To the Requester: Jessica VanderKam, Esquire Dear Ms. VanderKam: 24-565 This responds to your letter dated September 11, 2024, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the issue presented below: Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et sec ., would impose prohibitions or restrictions upon the members of the board of a municipal authority, who are considering utilizing a particular corporation's wastewater treatment technology for a new wastewater treatment plant, with regard to accepting an offer from the corporation to cover the travel costs associated with the members' attendance at a complimentary seminar featuring the corporation's wastewater treatment technology. BriefAnswer: The Ethics Act would not prohibit the members of the board of the municipal authority from accepting the corporation's offer to cover the travel costs associated with their attendance at the complimentary seminar subject to the condition that there would be no understanding that the members' official action or judgment would be influenced thereby in contravention of Sections 1103(b)-(c) of the Ethics Act. Facts: You have been authorized by the Members of the Board of the Newtown, Bucks County, Joint Municipal Authority ("the Authority") to request an advisory from the Commission on their behalf. You have submitted facts that may be fairly summarized as follows. VanderKam, 24-565 September 27, 2024 Page 2 The Authority, which provides sanitary sewer services to Newtown Borough and Newtown Township, is in the early stages of designing a new wastewater treatment plant. After apreliminary evaluation, the Authority is considering AquaNereda, an innovative wastewater treatment technology developed by Aqua -Aerobic Systems, Inc. ("the Corporation"), for its preferred biological treatment process. The Members of the Authority Board and Authority managerial staff have expressed interest in seeing an existing installation of AquaNereda technology in order to assess the appropriateness of the technology with respect to the design of the new wastewater treatment plant. The Corporation offers complimentary seminars to allow interested parties to visit a wastewater treatment plant that has already incorporated AquaNereda technology into its system. The Corporation has indicated that the Wolcott Wastewater Treatment Plant in Wolcott, Kansas, would be the most appropriate location for Authority representatives to attend a one -day AquaNereda technology seminar. Attendance at the seminar would include a presentation on AquaNereda technology, a plant tour, and a question and answer session. There would be no cost to attend the seminar, and the Corporation has offered to pay for the Authority representatives' airline tickets, hotel accommodations, transportation between the airport and the hotel, and meals. Based upon the above submitted facts, you ask whether the Ethics Act would impose prohibitions or restrictions upon the Members of the Authority Board with regard to accepting the Corporation's offer to cover the cost of their transportation, lodging and hospitality associated with their attendance at the AquaNereda technology seminar. 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 11030) 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. 0) 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 VanderKam, 24-565 September 27, 2024 Page 3 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), 11030). 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. 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 employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. VanderKam, 24-565 September 27, 2024 Page 4 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 11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting conflict. Per Commission precedent, the Ethics Act does not prohibit a public official/public employee from accepting "no -strings -attached" gifts, transportation, lodging or hospitality. Cf., Cooper, Opinion 92-009. Sections 1103(b) and 1103(c) of the Ethics Act, 65 Pa.C.S. §§ 1103(b), 1103(c), provide in part that no person shall offer or give to a public official/public employee anything of monetary value and no public official/public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official/public employee would be influenced thereby. Sections 1104(a) and 1105(b) of the Ethics Act, 65 Pa.C.S. §§ 1104(a), 1105(b), provide for the filing of annual Statements of Financial Interests by public officials/public employees. Subject to certain statutory exceptions, Section 1105(b)(7) of the Ethics Act, 65 Pa.C.S. § 1105(b)(7), requires the filer to disclose on the Statement of Financial Interests the name and address of the source and the amount of any payment for or reimbursement of actual expenses for transportation and lodging or hospitality received in connection with public office or employment where such actual expenses exceed $650 in an aggregate amount per year. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. The Members of the Authority Board are public officials subject to the provisions of the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, the Authority Board Members generally would be prohibited from using the authority of their public position or confidential information received by holding their public position for the private pecuniary (financial) benefit of themselves, their immediate family members, or businesses with which they or their immediate family members are associated. The Ethics Act would not prohibit the Authority Board Members from accepting the Corporation's offer to cover the cost of their transportation, lodging and hospitality associated with their attendance at the AquaNereda technology seminar subject to the condition that there would be no understanding that the Authority Board Members' official action or judgment would be influenced thereby in contravention of Sections 1103(b)-(c) of the Ethics Act. Cf., Confidential Advice, 23-551; Ewald Advice 12-524. To the extent the reporting threshold of Section 1105(b)(7) of the Ethics Act would be met, the Authority Board Members would be required to satisfy the disclosure requirements of Section VanderKam, 24-565 September 27, 2024 Page 5 1105(b)(7) of the Ethics Act as to the transportation, lodging and hospitality received from the Corporation. 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 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