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Home My WebLink About25-519 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 April 21, 2025 To the Requester: 25-519 This responds to your letter dated March 26, 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 prohibit or restrict an individualfrom serving as a \[Member of the Governing Body\] of a \[Political Subdivision\] while the individual is receiving \[Benefits\]from the \[Political Subdivision\]. Brief Answer: NO. The Ethics Act would not prohibit the individual from serving as a \[Member of the Governing Body\] of the \[Political Subdivision\]while the individual is receiving \[Benefits\]from the \[Political Subdivision\]. However, if elected as a \[Member of the Governing Body\] of the \[Political Subdivision\], the individual generally would have a conflict of interest in matters pertaining to the individual’s \[Benefits\]. Facts: Yourequest a confidential advisory from the Commission based upon submitted factsthat may be fairly summarized as follows. You are the \[Position\] of the \[Political Subdivision\]. An individual who is employed with the \[Political Subdivision\] (“the Individual”) intends to seek election as a \[Member of the Governing Body\] of the \[Political Subdivision\]. The Individual intends to retire from employment with the \[Political Subdivision\] effective \[Date\]. Accordingly, if the Individual would be elected as a \[Member of the Governing Body\] ofthe \[Political Subdivision\], theindividual would not be Confidential Advice, 25-519 April 21, 2025 Page 2 an employee of the \[Political Subdivision\]when sworn into office as a \[Member of the Governing Body\] of the \[Political Subdivision\]. The Individual has opted to take advantage of \[Benefits\] offered by the \[Political Subdivision\]. Under these \[Benefits\],the \[Political Subdivision\]will pay for \[Certain Benefits for the Individual\] for a \[Period of Time\], or in the alternative, the Individual can elect a \[Monetary Amount\] during each year of eligibility under the \[Benefits\]. Based upon the above submitted facts, you pose the following questions: (1) Whether it would be a conflict of interest under Section 1103(a) of the Ethics Act for the \[Political Subdivision\] or the Individual if the Individual would serve as a \[Member of the Governing Body\] of the \[Political Subdivision\] while receiving \[Benefits\] from the \[Political Subdivision\]; (2) Whether it would be a violation of any other provision of the Ethics Act for the \[Political Subdivision\] or the Individual if the Individual would serve as a \[Member of the Governing Body\] of the \[Political Subdivision\] while receiving \[Benefits\] from the \[Political Subdivision\]; and (3) Whether the analysis and answer to either of the questions posed above would differ if the Individual would elect to receive \[Certain Benefits for the Individual\] rather than the \[Monetary Amount\]. 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 Confidential Advice, 25-519 April 21, 2025 Page 3 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 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. 65 Pa.C.S. § 1102. Confidential Advice, 25-519 April 21, 2025 Page 4 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. The 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 includevoting 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. If the Individual would be elected as a \[Member of the Governing Body\] of the \[Political Subdivision\], upon assuming said position, the Individual would be a public official subject to the provisions of the Ethics Act. As a \[Member of the Governing Body\] of the \[Political Subdivision\], the Individual generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters that would financially impact the Individual, a member of the Individual’s immediate family, or a business with which the Individual or a member of the Individual’s immediate family is associated. Neither Section 1103(a) of the Ethics Act nor any other provision of the Ethics Act would prohibit the Individual from serving as a \[Member of the Governing Body\] of the \[Political Subdivision\] while receiving either\[Certain Benefits for the Individual\]or the \[Monetary Amount\] under the \[Benefits\] offered by the \[Political Subdivision\]. However, subject to the Ethics Act’s statutory exclusions to the definition of “conflict” or “conflict of interest” (i.e., the de minimis exclusion and the class/subclassexclusion), 65 Pa.C.S. § 1102, the Individual would have a conflict of interest under Section 1103(a) of the Ethics Act in mattersbefore the \[Political Subdivision Governing Body\]pertaining to the Individual’s \[Benefits\]. In each instance of a conflict of interest, the Individual 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. The Ethics Act does not impose prohibitions or restrictions upon political subdivisions such as the \[Political Subdivision\]. Therefore, it would not be possible for the \[Political Subdivision\] to have a conflict of interest under Section 1103(a) of the Ethics Act or to violate any other Confidential Advice, 25-519 April 21, 2025 Page 5 provision of the Ethics Act if the Individual would serve as a \[Member of the Governing Body\] of the \[Political Subdivision\] while receiving \[Benefits\] from the \[Political Subdivision\]. 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 recordand 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