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Home My WebLink About25-506 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 13, 2025 To the Requester: 25-506 This responds to your letter dated February 5, 2025, by which you requested a confidential advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the general 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 a state legislator who is pursuing a \[Type of Degree\] with regard to completing a \[Type of Activity\] with the \[Governmental Body Within the Pennsylvania General Assembly\]. Brief Answer: NO. Section 1103(a) of the Ethics Act, pertaining to conflict of interest, imposes restrictions upon the state legislator in his public capacity rather than upon him in his private capacity. Therefore, Section 1103(a) of the Ethics Act would not prohibit the state legislator from completing a \[Type of Activity\]with the \[Governmental Body Within the Pennsylvania General Assembly\]. Facts: You request a confidential advisory from the Commission based upon the following submitted facts. As a Member of \[a Chamber of the Pennsylvania General Assembly\], you represent the \[District\]. In your private capacity, you are pursuing a \[Type of Degree\] through the \[Educational Institution\] \[Type of Program\]. As part of the program, you are required to participate in a \[Type of Activity\] to \[Achieve a Certain Goal\]. After making an inquiry, you were advised by the \[Governmental Body Within the Pennsylvania General Assembly\]that it offers that \[Type of Activity\]. Confidential Advice, 25-506 February 13, 2025 Page 2 Based upon the above submitted facts, you pose the following questions: (1) Whether the Legislative Code of Ethics would prohibit you from completing a \[Type of Activity\] with the \[Governmental Body Within the Pennsylvania General Assembly\]; and (2) Whether the Ethics Act would prohibit you from completing a \[Type of Activity\] with the \[Governmental Body Within the Pennsylvania General Assembly\]. 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. Confidential Advice, 25-506 February 13, 2025 Page 3 “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, pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is prohibited from using the authority of public office/employment 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. 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. To the extent the activities of a state legislator relate to “legislative actions” (introducing, considering, debating, voting, enacting, adopting, or approving legislation), they are constitutionally controlled and are exempt from the purview of the Ethics Act and the Commission. See, Mann, Opinion 07-005; Confidential Opinion, 05-002; Corrigan, Opinion 87-001. Conclusion: It is initially noted that your first question cannot be addressed in this advisory as the Commission lacks statutory jurisdiction to interpret the Legislative Code of Ethics. In response to your second question, you are advised as follows. In your capacity as a Member of the \[Chamber of the Pennsylvania General Assembly\], you are a public official subject to the provisions of the Ethics Act. Section 1103(a) of the Ethics Act, pertaining to conflict of interest, imposes restrictions upon you in your capacity as a public official, rather than upon you in your private capacity. Therefore, Section 1103(a) would not Confidential Advice, 25-506 February 13, 2025 Page 4 prohibit you, in your private capacity, from completing a\[Type of Activity\]with the \[Governmental Body Within the Pennsylvania General Assembly\]. 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