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Home My WebLink About25-537 Harley 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 September 15, 2025 To the Requester: Thomas R. Harley 25-537 Dear Mr. Harley: This responds to your letter dated August 29, 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 an individual who is a registered architect and a minority owner of an architectural firm with regard to serving as the Professional Architect/Engineer Lead on a project to build a Masonry Safety Building for the Indiana County Technology Center (“the ICTC”), where: (1) the individual is a School Director for the Indiana Area School District (“School District”); (2) the School District is one of nine school districts served by the ICTC;(3) the individual has not been appointed as a Member of the ICTC Joint Operating Committee by the School District; (4) the individual’s contract to perform such work would be with the ICTC; and (5) the School District would have no control over the project and would make no decisions involving the project. Brief Answer:NO. Section 1103(a) of the Ethics Act, pertaining to conflict of interest, imposes restrictions upon the individual in his capacity as a School Director for theSchool District rather than upon him in his private capacity. Therefore, Section 1103(a) would not prohibit the individual from serving as the Professional Architect/Engineer Lead on the project for the ICTC. Additionally, because the individual’s contract to perform work as the Professional Architect/Engineer Lead on the project would be with the ICTC and not the School District, the restrictions and requirements of Section 1103(f) of the Ethics Act Harley, 25-537 September 15, 2025 Page 2 (pertaining to contracting with a public official’s/public employee’s governmental body) would not be applicable to the contract. Facts: Yourequest an advisory from the Commission based upon the following submitted facts. You are a School Director for the School District. The School District is one of nine school districts served by the ICTC. You have not been appointed to theICTC Joint Operating Committee by the School District. In a private capacity you are a registered architect and a minority owner of UpStreet Architects Inc. You designed at no cost a Masonry Safety Building that the ICTC wishes to build, and you would like to be the Professional Architect/Engineer Lead on that project. Your contract to perform such work would be with the ICTC. The School District would have no control over the project and would make no decisions involving the project. You seek guidance as to whether the Ethics Act would impose any prohibitions or restrictions upon you with regard to contracting with the ICTC to be the Professional Architect/Engineer Lead on the Masonry Safety Building project. 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 Harley, 25-537 September 15, 2025 Page 3 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. Harley, 25-537 September 15, 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” 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 employeehimself, 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. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As a School Director for the School District, you are a public official subject to the provisions of the Ethics Act. UpStreet Architects Inc. is a business with which you are associated in your capacity as an owner. Pursuant to Section 1103(a) of the Ethics Act, you generally would have a conflict of interest in matters before the School District School Board that would financially impact you or UpStreet Architects Inc. Because Section 1103(a) of the Ethics Act, pertaining to conflict of interest, imposes restrictions upon you in your public capacity as a School Director rather than upon you in your private capacity, Section 1103(a) would not prohibit you from contracting with the ICTC to be the Professional Architect/Engineer Lead on the Masonry Safety Building project. If you would enter into such a contract with the ICTC, the fact that the ICTC would be your client in and of itself would not form the basis of a conflict of interest for you in matters before the School District School Board involving the ICTC. You would not have a conflict of interest in a matter before the School District School Board that would involve the ICTC unless such matter would financially impact you or UpStreet Architects Inc. Additionally, because your contract to perform work as the Professional Architect/Engineer Lead on the Masonry Safety Building project would be with the ICTC and not the School District, the restrictions and requirements of Section 1103(f) of the Ethics Act (pertaining to contracting with a public official’s/public employee’s governmental body) would not be applicable to the contract. Harley,25-537 September 15, 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 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