HomeMy WebLinkAbout24-570 Confidential
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 29, 2024
To the Requester:
24-570
This responds to your letter dated October 17, 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 two individuals serving as \[Political Subdivision\]\[Officials\], each of whom owns
property located within a \[Political Subdivision\] \[District\], would have a conflict of interest
under Section 1103(a) of the Public Official and Employee Ethics Act (“Ethics Act”), 65
Pa.C.S. § 1103(a), with regard to voting on the repeal of a uniform \[Type of Tax\] that is
levied on every property located within a \[Political Subdivision\] \[District\].
Brief Answer: NO. The \[Political Subdivision\] \[Officials\] would not have a conflict of
interest with regard to voting on the repeal of the uniform \[Type of Tax\] levied on
properties located within the \[Political Subdivision’s\] \[Districts\] because their action
would affect to the same degree a subclass consisting of themselves and all other owners
of property located within a \[Political Subdivision\] \[District\], such that the class/subclass
1
exclusion to a conflict of interest would be applicable.
Facts:
You have been authorized by \[Individual 1\] and \[Individual 2\] to request a confidential
advisory from the Commission on their behalf. You have submitted facts that may be fairly
summarized as follows.
1
Pursuant to the definition of “conflict” or “conflict of interest” set forth in Section 1102 of the Ethics Act, action 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, 24-570
October 29, 2024
Page 2
\[Individual 1\] and \[Individual 2\] are Members of the \[Governing Body\] of the \[Political
Subdivision\], located in \[County\], Pennsylvania. The \[Political Subdivision\] \[Governing Body\]
is composed of three Members.
The \[Political Subdivision\] has \[Districts\] that were established for \[a Particular Purpose\].
In order to pay for the cost of \[Certain Public Works\] within the \[Districts\], the \[Political
Subdivision\] levies a uniform \[Type of Tax\] on each property located within a \[District\]. The
\[Political Subdivision\] is considering whether to repeal the \[Type of Tax\].
\[Individual 1\] and \[Individual 2\] each own property located within a \[District\], and
therefore they are assessed a \[Type of Tax\]. The third \[Political Subdivision\] \[Official\],
\[Individual 3\], does not own property located within a \[District\].
Based upon the above submitted facts, you seek guidance as to whether \[Individual 1\] and
\[Individual 2\] would have a conflict of interest with regard to voting on the repeal of the \[Type of
Tax\], and if so, what procedures should be followed by the \[Political Subdivision\] \[Governing
Body\] when two of the three \[Political Subdivision\] \[Officials\] would have a voting conflict as to
that matter.
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
Confidential Advice, 24-570
October 29, 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.
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 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
Confidential Advice, 24-570
October 29, 2024
Page 4
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.
A conflict of interest would not exist to the extent the “class/subclass” exclusion set forth
within the Ethics Act’s definition of the term "conflict" or "conflict of interest" would be
applicable. 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 \[Political Subdivision\] \[Officials\], \[Individual 1\] and \[Individual 2\] are public officials
subject to the provisions of the Ethics Act. \[Individual 1\] and \[Individual 2\] each would generally
have a conflict of interest under Section 1103(a) of the Ethics Act in matters that would financially
impact him, a member of his immediate family, or a business with which he or a member of his
immediate family is associated.
Because \[Individual 1\] and \[Individual 2\] each own property located within a \[District\],
both \[Individual 1\] and \[Individual 2\] would have a conflict of interest with regard to voting on
the repeal of the \[Type of Tax\]unless the class/subclass exclusion would be applicable. Based
upon the submitted facts, \[Individual 1\] and \[Individual 2\] are members of a subclass that consists
of all owners of property located within a \[District\]. Given that the\[Type of Tax\] is a tax that is
levied uniformly on properties located within the \[Districts\], each member of the subclass of
owners of property located within a \[District\] would be affected to the same degree by a repeal of
the \[Type of Tax\]. As such, the class/subclass exclusion would be applicable, and \[Individual 1\]
and \[Individual 2\] would not have a conflict of interest with regard to voting on the repeal of the
\[Type of Tax\].
Confidential Advice, 24-570
October 29, 2024
Page 5
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