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Home My WebLink About25-523 Powers 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 25, 2025 To the Requester: Shane K. Powers President and Chief Executive Officer NeighborWorks Northeastern Pennsylvania 25-523 Dear Ms. Powers: This responds to your letter dated April 10, 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 prohibit an individual who is employed with a nonprofit organization that receives funding from a city from serving as a member of council for that city. Brief Answer: NO. The Ethics Act would not prohibit the individual from serving as a member of council for the city while employed with the nonprofit organization. However, if elected as a member of the city council, the individual generally would have a conflict of interest in matters before the city council that would financially impact him or the nonprofit organization. Facts: As President and Chief Executive Officer of a nonprofit organization named “NeighborWorks Northeastern Pennsylvania” (“the Organization”), you request an advisory from the Commission based upon the following submitted facts. Todd Pousley (“Mr. Pousley”), who is employed as the Director of Community Development for the Organization, is seeking election as a Member of Council for the City of Powers, 25-523 April 25, 2025 Page 2 Scranton (“City”). Mr. Pousley’s job responsibilities include coordinating projects and managing partnerships for the Organization’s community development programs and services. Mr. Pousley also regularly seeks sustainable funding and revenue for the Organization’s programs and services from various sources, including the City. Over the Organization’s last five fiscal years, the City, through City Council, has awarded $758,500 in grants to the Organization for its initiatives. Mr. Pousley was actively involved in obtaining these grants by advocating on behalf of the Organization through formal and informal discussions with City Council. Based upon the above submitted facts, the following questions are posed by your advisory request: (1) Whether Mr. Pousley would have a conflict of interest under the Ethics Act with regard to serving as a City Council Member while employed as the Director of Community Development for the Organization; (2) Whether Mr. Pousley would be required to recuse himself from discussions, decisions, or votes on matters involving the Organization if he would be elected as a Member of City Council; and (3) Whether there would be any specific disclosures or compliance measures that would mitigate any potential conflicts of interest. 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 Powers, 25-523 April 25, 2025 Page 3 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. “Business.” Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self-employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. Powers, 25-523 April 25, 2025 Page 4 “Business with which he is associated.” Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Act’s definition of the term “conflict” or “conflict of interest” (i.e., the “de minimis exclusion” or the “class/subclass exclusion”), 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 employeehimself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. The definition of the term “business” as set forth in the Ethics Act includes a non-profit organization. Rendell v. State Ethics Commission, 603 Pa. 292, 983 A.2d 708 (2009). 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 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. The Ethics Act would not prohibit Mr. Pousley from being elected and serving as a Member of City Council while he is employed as the Director of Community Development for the Organization. If Mr. Pousley would be elected as a Member of City Council, upon assuming said position, he would in that capacity be a public official subject to the provisions of the Ethics Act. Section 1103(a) of the Ethics Act, pertaining to conflict of interest, would impose restrictions upon Mr. Pousley in his public capacity as a Member of City Council rather than upon him in his private capacity as an Organization employee. Therefore, Section 1103(a) would not prohibit Mr. Pousley from performing any of his duties and responsibilities as the Director of Community Development for the Organization if he would be elected as a Member of City Council. However, as a Member of City Council, Mr. Pousley generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters that would financially impact him or the Organization, which is a business with which he is associated in his capacity as an employee. Mr. Pousley specifically would have a conflict of interest with regard to participating in discussions, decisions, or votes of City Council on the award of grants from the City to the Organization. In each instance of a conflict of interest, Mr. Pousley would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section Powers, 25-523 April 25, 2025 Page 5 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. 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