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HomeMy WebLinkAbout25-526 KattnerPHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0938 FINANCE BUILDING WEBSITE: www.eihics.pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL May 21, 2025 To the Requester: Paul Kattner Dear Mr, Kattner: 25-52b This responds to your letter dated April 30, 2025, by which you requested an advisory from the Pennsylvania State Ethics Corrunission ("Commission"), seeking guidance as to the issue presented below: Issue: Facts: Whether, pursuant to Section 1103(a) of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa,C,S. § 1103(a), an individual serving as a Member of Council for Nesquehoning Borough ("Borough'), who also serves in a non -compensated position as a Member of the Board of the Nesquehoning Borough Water Authority (`Borough Water Authority"), would have a conflict of interest with regard to participating in votes of Borough Council on the potential dissolution of the Borough Water Authority or on appointments to the Borough Water Authority Board. Brief Ansvt,er: NO. The individual would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in Borough Council votes on the potential dissolution of the Borough Water Authority or on appointments to the Borough Water Authority Board because the submitted facts do not indicate that Borough Council action as to such matters would result in a private pecuniary (financial) benefit for the individual, a member of his immediate family, or a business with which he or a member of his immediate family is associated. You request an advisory from the Commission based upon the following submitted facts. Kanner, 25-526 May 21, 2025 Page 2 You are a Member of Borough Council. You are also a Member of the Board of the Borough Water Authority. Members of the Borough Water Authority Board are appointed by Borough Council to five-year terms. Although you receive compensation for serving as a Borough Council Member, you do not receive compensation for serving as a Member of the Borough Water Authority Board. During the past year and a half, several Members of Borough Council have mentioned the possibility of dissolving the Borough Water Authority. You believe that the dissolution of the Borough Water Authority would not benefit the Borough but rather would inandate more work for the current Borough personnel. You ask whether you would have a conflict of interest with regard to participating in votes of Borough Council on the potential dissolution of the Borough Water Authority or on appointments to the Borough Water Authority Board. 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 11030) 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. 0) Voting conflict. -- Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any Iaw, 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 a matter before it because the number of members of the body required to abstain from voting under the provisions of this section Kattner, 25-526 May 21, 2025 Page 3 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), 11030). 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. 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" and 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 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. Kattner, 25-526 May 21, 2025 Page 4 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 11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting conflict. 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. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As a Member of Borough Council and as a Member of the Borough Water Authority Board, you are a public official subject to the provisions of the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, you generally would be prohibited from using the authority of either of your public positions or confidential information received through holding either of your public positions for the private pecuniary (financial) benefit of yourself, a member of your immediate family, or a business with which you or a member of your immediate family is associated. Because the Borough Water Authority is a governmental entity and not a business, you would not have a conflict of interest in matters before Borough Council that would financially impact the Borough Water Authority but that would not financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. See, Confidential Opinion, 01-005; McCarrier/Anderson, Opinion 98-008; Warso, Order 974. The submitted facts do not indicate that Borough Council action as to the potential dissolution of the Borough Water Authority or on appointments to the Borough Water Authority Board would result in a private pecuniary (financial) benefit for you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. Therefore, you are advised that you would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in Borough Council votes on the potential dissolution of the Borough Water Authority or on appointments to the Borough Water Authority Board. Kattner, 25-526 May 21, 2025 Page 5 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 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