HomeMy WebLinkAbout25-527 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
May 28, 2025
To the Requester:
25-527
This responds to your letter dated May 16, 2025, by which you requested a confidential
advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as
to the issue presented below:
Issue:
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 township supervisor, who
in his private capacity is \[Affiliated With\] a \[Company\] that \[Engages in an Activity\] on
rented property located in the township, would have a conflict of interest with regard to
voting on proposed amendments to the township zoning ordinance and the township zoning
map that would permit the establishment of a \[Facility\] on the rented property and result in
the loss of the \[Company’s\] ability to rent the \[Area of the Property\].
Brief Answer: The individual generally would have a conflict of interest under Section
1103(a) of the Ethics Act in matters before the township board of supervisors that would
financially benefit him or the \[Company\], which is a business with which the individual is
associated. Based upon the submitted facts that neither the individual nor the \[Company\]
would financially benefit from the establishment of the \[Facility\] on the rented property,
the individual would not have a conflict of interest with regard to voting in favor of the
proposed amendments. However, the individual would have a conflict of interest with
regard to voting against the proposed amendments, as doing so would constitute a use of
the authority ofhis office as a township supervisor to eliminate a negative financial impact
on his and the \[Company’s\] business interests.
Facts:
Confidential Advice, 25-527
May 28, 2025
Page 2
You have been authorized by \[the Individual\] to request a confidential advisory from the
Commission on his behalf. You have submitted facts that may be fairly summarized as follows.
\[The Individual\] is a Member of the Board of Supervisors of \[Name of Township\] (“the
Township”), located in \[County\], Pennsylvania. The Township Board of Supervisors consists of
three Members.
\[The Individual\] is one of \[a Number of Individuals Affiliated With\] a \[Type of Company\]
named \[the Company\]. \[The Company\] rents approximately \[Number of Acres\] of a property
(“the Property”) that is located within the \[Type of Zoning District\] of the Township. \[The
Company\] uses \[Product Generated\] on the Property \[For Purposes Relating to Properties\] owned
by \[the Company\]. The Property constitutes approximately \[Percentage\] of the total amount of
land \[Used for Certain Purposes\] by \[the Individual\].
The Township has received notice of interest in the establishment of a \[Facility\] on the
Property, which would result in the Property losing its \[Type of Area\]. \[The Individual\] would
receive no benefit from the \[Facility\] being located on the Property as \[the Company\] would no
longer be able to rent acreage of the Property for \[Certain Purposes\].
In order for the proposed \[Facility\]to operate on the Property, the Township Zoning
Ordinance would need to be amended to allow \[Type of Facilities\] in the \[Type of Zoning District\]
and the Township Zoning Map would need to be amended to extend the \[Type of Zoning District\]
to include the Property.
Based upon the above submitted facts, you seek guidance as to whether \[the Individual\]
would have a conflict of interest with regard to voting on proposed amendments to the Township
Zoning Ordinance and the Township Zoning Map that would permit the proposed \[Facility\] to be
located on the Property, and if so, what procedures should be followed if the other two Township
Supervisors would cast opposing votes on the proposed amendments to the Township Zoning
Ordinance and the Township Zoning Map.
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
Confidential Advice, 25-527
May 28, 2025
Page 3
(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
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.
Confidential Advice, 25-527
May 28, 2025
Page 4
“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.
“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,” 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 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.
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. The Commission has held that a
Confidential Advice, 25-527
May 28, 2025
Page 5
use of office to lessen or eliminate a negative financial impact constitutes a private pecuniary
benefit. See, Mohr, Order 1293; Heineman, Order 1258.
Conclusion:
In applying the above provisions of the Ethics Act to the instant matter, you are advised as
follows.
As a Township Supervisor, \[the Individual\] is a public official subject to the provisions of
the Ethics Act. \[The Company\] is a business with which \[the Individual\] is associated in his
capacity as a \[Person Affiliated With\] \[the Company\]. \[The Individual\] generally would have a
conflict of interest under Section 1103(a) of the Ethics Act in matters that would financially benefit
him or \[the Company\].
Based upon the submitted facts that the establishment of the \[Facility\] on the Property
would not financially benefit \[the Individual\] or \[the Company\], \[the Individual\] would not have
a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting in favor of
proposed amendments to the Township Zoning Ordinance and the Township Zoning Map that
would permit the proposed \[Facility\] to be located on the Property. However, \[the Individual\]
would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting
against proposed amendments to the Township Zoning Ordinance and the Township Zoning Map
that would permit the proposed \[Facility\] to be located on the Property, as doing so would
constitute a use of the authority of his office as a Township Supervisor to eliminate a negative
financial impact on his and \[the Company’s\] business interests (i.e., the loss of \[the Company’s\]
ability to rent acreage of the Property \[For a Certain Purpose\]). \[The Individual\] would be required
to abstain from voting against the proposed amendments to the Township Zoning Ordinance and
the Township Zoning Map unless one of the voting conflict exceptions of Section 1103(j) of the
Ethics Act would be applicable.
The exception for breaking a tie vote despite a conflict of interest is available exclusively
to members of three-member governing bodies of political subdivisions who first abstain and
disclose their conflicts as required by Section 1103(j) of the Ethics Act. See, e.g., Pavlovic,
Opinion 02-005. Because the Township Board of Supervisors is a three-Member governing body
of a political subdivision, Section 1103(j) would permit \[the Individual\] to vote to break a tie if the
other two Township Supervisors would cast opposing votes on the proposed amendments to the
Township Zoning Ordinance and the Township Zoning Map, provided that \[the Individual\] would
initially: (1) abstain from the vote; and (2) fully satisfy the disclosure requirements of Section
1103(j). However, in voting to break a tie vote, \[the Individual\] could not otherwise use the
authority of office, such as by advocating his view, in the matter.
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.
Confidential Advice, 25-527
May 28, 2025
Page 6
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