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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
October 9, 2024
To the Requester:
24-566
This responds to your letter dated September 23, 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, pursuant to Section 1103(a) of the Public Official and Employee Ethics Act
(“Ethics Act”), 65 Pa.C.S. § 1103(a), an individual serving as a \[Political Subdivision\]
\[Official\] would have a conflict of interest with regard to voting on the enactment of an
ordinance that would establish a \[Type of Tax\] in the \[Political Subdivision\], where: (1)
the \[Political Subdivision Governing Body\] is considering whether the \[Political
Subdivision\] tax collector should be compensated for collecting a \[Type of Tax\] if one
would be established; (2) any compensation for the \[Political Subdivision\] tax collector for
collecting a \[Type of Tax\] would need to be authorized by a \[Political Subdivision\]
ordinance or resolution; (3) the individual’s \[Relative\] is the elected tax collector for the
\[Political Subdivision\]; and (4) the individual’s \[Relative\] has recommended that the
\[Political Subdivision\] tax collector not be compensated for collecting a \[Type of Tax\] due
to the small amount of work that would be involved in its collection.
Brief Answer: YES. The individual’s \[Relative\] is a member of his “immediate family”
as that term is defined by the Ethics Act. The individual generally would have a conflict
of interest under Section 1103(a) of the Ethics Act in matters before the \[Political
Subdivision Governing Body\] that would financially impact him or his \[Relative\]. The
individual specifically would have a conflict of interest with regard to voting on the
enactment of a \[Type of Tax\] ordinance as its enactment would be the predicate for any
\[Political Subdivision\] ordinance or resolution that would authorize compensation for his
\[Relative\] for collecting the \[Type of Tax\] in her role as the \[Political Subdivision\] tax
collector.
Confidential Advice, 24-566
October 9, 2024
Page 2
Facts:
You have been authorized by \[Individual One\] to request a confidential advisory from the
Commission on his behalf. You have submitted facts that may be fairly summarized as follows.
\[Individual One\] is a Member of the \[Governing Body\] of the \[Political Subdivision\],
located in \[County\], Pennsylvania. \[Individual One’s\] \[Relative\] is the elected Tax Collector for
the \[Political Subdivision\].
The \[Political Subdivision Governing Body\] is considering the enactment of an ordinance
that would establish a \[Type of Tax\] in the \[Political Subdivision\]. The \[Political Subdivision
Governing Body\] is also considering whether the \[Political Subdivision\] Tax Collector should be
compensated for collecting a \[Type of Tax\] if one would be established. Any compensation for
the \[Political Subdivision\] Tax Collector for collecting a \[Type of Tax\] would need to be
authorized by a \[Political Subdivision\] ordinance or resolution. \[Individual One’s\] \[Relative\] has
recommended that the \[Political Subdivision\] Tax Collector not be compensated for collecting a
\[Type of Tax\] due to the small amount of work that would be involved in its collection.
Based upon the above submitted facts, you seek guidance as to whether \[Individual One\]
would have a conflict of interest with regard to voting on the enactment of an ordinance that would
establish a \[Type of Tax\]. In particular, you ask whether \[Individual One\] would be permitted to
vote on the enactment of a \[Type of Tax\] ordinance if he would abstain from voting on the
enactment of any subsequent ordinance or resolution that would establish compensation for the
\[Political Subdivision\] Tax Collector for collecting the \[Type of Tax\]. You further seek guidance
as to what procedures for seconding a motion and voting would be permitted where both
\[Individual One\] and another \[Political Subdivision\] \[Official\], \[Individual Two\], would have a
1
conflict of interest with regard to voting on the enactment of a \[Type of Tax\] ordinance.
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
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It is noted that an Advice of Counsel that was previously issued to you on behalf of \[Individual Two\], \[Citation\],
addressed a similar voting conflict scenario involving \[Type of Taxes\].
Confidential Advice, 24-566
October 9, 2024
Page 3
(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
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.
Confidential Advice, 24-566
October 9, 2024
Page 4
“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.
65 Pa.C.S. § 1102.
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 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.
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.
Confidential Advice, 24-566
October 9, 2024
Page 5
As a \[Political Subdivision\] \[Official\], \[Individual One\] is a public official subject to the
provisions of the Ethics Act. \[Individual One’s\] \[Relative\] is a member of his “immediate family”
as that term is defined in the Ethics Act. \[Individual One\] generally would have a conflict of
interest under Section 1103(a) of the Ethics Act in matters that would financially impact him or
his \[Relative\].
\[Individual One\] specifically would have a conflict of interest with regard to voting on the
enactment of an ordinance that would establish a \[Type of Tax\] as the enactment of the ordinance
would be the predicate for any \[Political Subdivision\] ordinance or resolution that would authorize
compensation for his \[Relative\] for collecting the \[Type of Tax\] in her role as the \[Political
Subdivision\] Tax Collector. \[Individual One\] would be required to abstain from voting on the
enactment of a \[Type of Tax\] ordinance — even if he would abstain from voting on the enactment
of a subsequent ordinance or resolution that would establish compensation for his \[Relative\] for
collecting the \[Type of Tax\] — unless one of the statutory exceptions of Section 1103(j) of the
Ethics Act would be applicable. Under the submitted facts, \[Individual Two\] also would have a
conflict of interest and would be required to abstain from voting on the enactment of a \[Type of
Tax\] ordinance unless one of the statutory exceptions of Section 1103(j) would be applicable.
The two voting conflict exceptions contained in Section 1103(j) of the Ethics Act are strictly
limited to voting and do not authorize an individual with a conflict to make a motion to put the
matter in a posture for a vote. When two members on a three-member board would have conflicts
of interest, only the non-conflicted member could make a motion. Since the non-conflicted
member could not second his own motion and it would be otherwise impossible to obtain a second
to the motion, a conflicted member, having previously abstained and disclosed his conflict, could
then second the motion if he would so choose. A conflicted member could not discuss or advocate
as to the motion. A conflicted member could only vote on the motion. Cf., Confidential Opinion,
04-003.
Therefore, as both \[Individual One\] and \[Individual Two\] would have a conflict of interest
with regard to voting on the enactment of a \[Type of Tax\] ordinance, only the third, non-conflicted
Member of the \[Political Subdivision Governing Body\] could make a motion as to the enactment
of such an ordinance. If such a motion would not be made, there would be no opportunity for a
motion to be seconded. If such a motion would be made, either \[Individual One\] or \[Individual
Two\], having previously abstained and disclosed the conflict, could then second the motion if he
would so choose. \[Individual One\] and \[Individual Two\] could not discuss or advocate as to the
motion, they could only vote on the motion. Cf., Confidential Opinion, 04-003.
If a \[Type of Tax\] ordinance would be enacted pursuant to the voting conflict exception
procedures set forth above, \[Individual One\] would have a conflict of interest with regard to voting
on the enactment of a \[Political Subdivision\] ordinance or resolution that would authorize
compensation for his \[Relative\] for collecting the \[Type of Tax\]. Accordingly, \[Individual One\]
would be required to abstain from voting on the enactment of such an ordinance or resolution
unless one of the statutory voting exceptions of Section 1103(j) of the Ethics Act would be
applicable. There is no basis in the submitted facts in the instant matter or in the submitted facts
of \[Citation\] to conclude that \[Individual Two\] would have a conflict of interest with regard to
Confidential Advice, 24-566
October 9, 2024
Page 6
voting on the enactment of an ordinance or resolution authorizing compensation for the \[Political
Subdivision\] Tax Collector for collecting the \[Type of Tax\].
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