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HomeMy WebLinkAbout25-502 Lippert 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 January 30, 2025 To the Requester: Michele Lippert 25-502 Dear Ms. Lippert: This responds to your email received January 22, 2025, 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 seq., would prohibit a borough secretary from continuing to serve in her public position if her husband would be appointed or elected to borough council. Brief Answer: NO. The Ethics Act does not prohibit immediate family members, such as a husband and wife, from serving together in positions with the same municipality. Therefore, the Ethics Act would not prohibit the borough secretary from continuing to serve in her public position if her husband would be appointed or elected to borough council. However, the borough secretary generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters that would financially impact her or her husband. Facts: You request an advisory from the Commission based upon the following submitted facts. You are the Secretary for Whitaker Borough (“Borough”). Your husband is going to submit his letter of interest for appointment to fill a currently vacant seat on Borough Council, and he is also going to run for election to Borough Council in 2025. Lippert, 25-502 January 30, 2025 Page 2 The question that is presented by your advisory request is whether the Ethics Act would impose any prohibitions or restrictions upon you with regard to continuing to serve as the Borough Secretary if your husband would be appointed or elected to Borough Council. 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 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. Lippert, 25-502 January 30, 2025 Page 3 “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. 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. As the Borough Secretary, you are a public official subject to the provisions of the Ethics Act. Your husband is a member of your “immediate family” as that term is defined in the Ethics Act. The Ethics Act does not prohibit immediate family members from serving together in positions with the same municipality. Therefore, the Ethics Act would not prohibit you from continuing to serve as the Borough Secretary if your husband would be appointed or elected to Borough Council. However, pursuant to Section 1103(a) of the Ethics Act, you generally would have a conflict of interest in your capacity as the Borough Secretary in matters that would financially impact you or your husband. 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 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 Lippert, 25-502 January 30, 2025 Page 4 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