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Home My WebLink About25-504 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 February 6, 2025 To the Requester: 25-504 This responds to your letter received January 31, 2025, by which you requested a confidential advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the issue presented below: Issue: Whetherthe Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon an individual employed as the \[Position\] for the \[Political Subdivision\], who in a private capacity is the founder and organizer of a community-based \[Type of Event\], with regard to seeking public endorsement of the event by \[Political Subdivision\]officials or partnering with nonprofit organizations that would manage funds collected for the \[Type of Event\] and process ticket sales for the \[Type of Event\]. Brief Answer: NO. Section 1103(a) of the Ethics Act, pertaining to conflict of interest, imposes restrictions upon the individual in his public capacity as the \[Position\] for the \[Political Subdivision\] rather than upon him in his private capacity. Therefore, Section 1103(a) would not prohibit the individual from seeking public endorsement of the \[Type of Event\] by \[Political Subdivision\] officials or partnering with nonprofit organizations in relation to management of the \[Type of Event’s\] funds and ticket sales. Facts: You request a confidential advisory from the Commission based upon the following submitted facts. Confidential Advice, 25-504 February 6, 2025 Page 2 You are the \[Position\] for the \[Political Subdivision\]. In your private capacity, you are the founder and organizer of \[Name of Event\], which is a community-based \[Type of Event\](“the Event”). The Event is to be held \[For a Particular Purpose\], and you seek to have the Event become a long-standing \[Type of Community Tradition\]. The Event will \[Engage in Certain Activities\]. You have a ten-year vision for the Event, and you are personally funding its early stages. Your ultimate goal is to seek endorsements and support from private companies for the Event. The Event is being organized in partnership with \[Name of Organization\] (“the Organization”), which is a 501(c)(3) nonprofit organization. All funds collected for the Event will be managed exclusively by the Organization or another partnering 501(c)(3) nonprofit organization. Ticket sales will be processed through the partner 501(c)(3) nonprofit organization, and all proceeds will be used solely to cover event expenses and provide money directly to \[Certain Event Participants\]. No financial profit from the Event will be realized by you or your family members or any public officials or their family members. You seek guidance as to whether the Ethics Act would impose any prohibitions or restrictions upon you in relation to the holding of the Event. In particular, you pose the following questions: (1) Whether you would be permitted to ask the \[Political Subdivision\] \[Public Official\] and Members of \[the Political Subdivision Governing Body\] to publicly speak about or endorse the Event; (2) Whether your partnership with nonprofit organizations which may independently apply for government funding or grants would constitute a conflict of interest, and if so, under what circumstances would such a conflict of interest be waivable; and (3) What level of participation or promotion could you ethically request from \[Political Subdivision\] officials to support the Event without creating the appearance of impropriety. 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 Confidential Advice, 25-504 February 6, 2025 Page 3 (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 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 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. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. Confidential Advice, 25-504 February 6, 2025 Page 4 As the \[Position\] for the \[Political Subdivision\], you are a public employee subject to the provisions of the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, you generally would have a conflict of interest as the \[Position\] 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. Section 1103(a) of the Ethics Act imposes restrictions upon you in your public capacity as the \[Position\] rather than upon you in your private capacity. Therefore, Section 1103(a) would not prohibit you, in your capacity as the Event organizer and founder,from asking the \[Political Subdivision\] \[Public Official\]and Members of \[the Political SubdivisionGoverning Body\] to publicly speak about or endorse the Eventor from partnering with nonprofit organizations which may independently apply for government funding or grants. Any mere potential appearance of impropriety from requesting \[Political Subdivision\]officials to support the Event would not be sufficient to establish a violation of the Ethics Act. However, Section 1103(a) generally would prohibit you from using \[Political Subdivision\]equipment or resources in furtherance of the planning or holding of the Event. 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