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To the Requester:
STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
FACSIMILE: 717-787-0806
WEBSITE: www.ethics.pa.gov
ADVICE OF COUNSEL
October 24, 2025
25-545
This responds to your letter dated October 1, 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 an individual serving as a Member of the [Governmental Body] would have a
conflict of interest under Section 1103(a) of the Public Official and Employee Ethics Act
("Ethics Act"), 65 Pa.C.S. § 1103(a), with regard to performing the duties of his public
position, where in a private capacity the individual is [Officer] and [Affiliate] of a
[Company] that is pursuing funding opportunities through [Governmental Entity 1 ] for
[Project 1] in the [Political Subdivision] and is also pursuing an opportunity for a [Lease]
with [Governmental Entity 2] for [Project 2].
Brief Answer: The individual would not have a conflict of interest with regard to
performing the duties of his position as a Member of the [Governmental Body] unless: (1)
the individual would be consciously aware of a private pecuniary (financial) benefit for
himself, a member of his immediate family, or a business with which he or a member of
his immediate family is associated such as the [Company]; (2) his action(s) would
constitute one or more specific steps to attain that benefit; and (3) neither of the statutory
exclusions to the definition of "conflict" or "conflict of interest" as set forth in Section
1102 of the Ethics Act would be applicable. i
Facts:
i Action that has a de minimis (insignificant) economic impact or that 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, does not constitute
a conflict of interest.
Confidential Advice, 25-545
October 24, 2025
Page 2
You request a confidential advisory from the Commission based upon the following
submitted facts.
You are a Member of the [Governmental Body]. You serve as the Chair of the
[Governmental Body's] [Committee].
In your private capacity, you are [Officer] and [Affiliate] of [Name of Company] ("the
Company"), which is a [Type of Company]. The Company is currently pursuing funding
opportunities through [Governmental Entity 1] for [Project 1] in the [Political Subdivision]. It is
likely that the Company may also pursue funding for other projects located in the Commonwealth.
The Company is additionally pursuing an opportunity for a [Lease] with [Governmental Entity 2]
for the intended purpose of constructing [Project 2].
The question that is posed by your advisory request is whether your employment with the
Company would cause you to have a conflict of interest with regard to performing the duties of
your position as a Member of the [Governmental Body].
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
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 bled 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
Confidential Advice, 25-545
October 24, 2025
Page 3
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), 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.
"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.
Confidential Advice, 25-545
October 24, 2025
Page 4
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.
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 the [Governmental Body], you are a public official subject to the
provisions of the Ethics Act. The Company is a business with which you are associated in your
capacities as [Officer] and [Affiliate] of the Company. Pursuant to Section 1103(a) of the Ethics
Act, you generally would have a conflict of interest as a Member of the [Governmental Body] in
matters that would financially impact you, a member of your immediate family, or a business with
which you or a member of your immediate family is associated such as the Company.
You would not have a conflict of interest with regard to performing the duties of your
position as a Member of the [Governmental Body] unless: (1) you would be consciously aware of
a private pecuniary (financial) benefit for yourself, a member of your immediate family, or a
business with which you or a member of your immediate family is associated such as the Company;
Confidential Advice, 25-545
October 24, 2025
Page 5
(2) your action(s) would constitute one or more specific steps to attain that benefit; and (3) neither
of the statutory exclusions to the definition of "conflict" or "conflict of interest" as set forth in the
Ethics Act would be applicable. As noted above, in each instance of a conflict of interest, you
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.
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