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HomeMy WebLinkAbout25-513 Brozusky 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 March 19, 2025 To the Requester: The Honorable Victor Brozusky Mayor, Borough of East Stroudsburg 25-513 Dear Mayor Brozusky: This responds to your letter dated March 3, 2025, by which you requested an 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 a borough mayor with regard to performing the duties of his public position if his wife would be elected as the borough tax collector. Brief Answer: YES. The borough mayor’s wife is a member of his “immediate family” as that term is defined in the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, the borough mayor generally would have a conflict of interest in matters that would financially impacthim, a member of his immediate family such as his wife, or a business with which he or a member of his immediate family is associated. If the borough mayor’s wife would be elected as the borough tax collector, the borough mayor generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters that would financially impact his wife in her role as the borough tax collector. Facts: You request an advisory from the Commission based upon the following submitted facts. Brozusky, 25-513 March 19, 2025 Page 2 You have served as Mayor of the Borough of East Stroudsburg (“Borough”), located in Monroe County, Pennsylvania, since 2022. You are also a Member of the Stroud Area Regional Police Commission. Your wife is seeking election as the Borough Tax Collector. The taxes collected by the Borough Tax Collector are forwarded to the Borough in the amounts owed the Borough. If elected as the Borough Tax Collector, your wife would receive payment for the services that she would perform in that role. As City Mayor, you have little to no contact with the services or duties performed by the Borough Tax Collector. You note that if your wife receives pay for services performed as the Borough Tax Collector, you will also receive an economic benefit. You seek guidance as to whether the Ethics Act would impose any prohibitions or restrictions upon you with regard to performing the duties of your position as Borough Mayor if your wife would be elected as the Borough Tax Collector. You further ask whether you should write a letter to inform the Borough that your wife is seeking election as the Borough Tax Collector. 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 minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on Brozusky, 25-513 March 19, 2025 Page 3 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. “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 definition of the term “conflict” or “conflict of interest” (i.e., the “de minimis exclusion” and the “class/subclass exclusion), 65 Pa.C.S. § 1102, 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 advancement of his own private pecuniary (financial) benefit or that of a business with which he is associated.The Brozusky, 25-513 March 19, 2025 Page 4 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. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As Borough Mayor, you are a public official subject to the provisions of the Ethics Act. Your wife is a member of your “immediate family” as that term is defined in the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, you generally would have a conflict of interest in your capacity as Borough Mayor in matters that would financially impact you, a member of your immediate family such as your wife, or a business with which you or a member of your immediate family is associated. If your wife would be elected as the Borough Tax Collector, you generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters that would financially impact your wife in her role as the Borough Tax Collector. In each instance of a conflict of interest, you 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. You are further advised that the Ethics Act would not require you to write a letter to inform the Borough that your wife is seeking election as the Borough Tax Collector. 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. Brozusky, 25-513 March 19, 2025 Page 5 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