The URL can be used to link to this page

Home My WebLink About25-548 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 November 3, 2025 To the Requester: 25-548 This responds to your correspondence dated October 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 a \[Public Officer\] for a \[Political Subdivision\], who does consulting work for the \[Firm\] that is the \[Professional Services Provider\] for the \[Political Subdivision\], would have a conflict of interest pursuant to Section 1103(a) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), with regard to voting on the payment of monthly invoices submitted to the \[Political Subdivision\] by the \[Firm\] or other matters involving the \[Firm\]. Brief Answer: The fact that the \[Firm\] is a client of the \[Public Officer\] in his private capacity as a consultant in and of itself would not form the basis of a conflict of interest for the \[Public Officer\] in matters before the \[Political Subdivision Governing Body\] involving the \[Firm\]. Absent some basis for a conflict of interest such as a private pecuniary (financial) benefit to the \[Public Officer\], a member of the \[Public Officer’s\] immediate family, or a business with which the \[Public Officer\] or a member of his immediate family is associated, the \[Public Officer\] would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting on the payment of monthly invoices submitted to the \[Political Subdivision\] by the \[Firm\] or other matters involving the \[Firm\]. Facts: Confidential Advice, 25-548 November 3, 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. \[The Individual\] was recently nominated by both \[Entity 1\] and \[Entity 2\] for a seat on the \[Governing Body\] of the \[Political Subdivision\]. \[The Individual\] has a consulting business (“the Consulting Business”) that was formed as an LLC. \[The Individual\], through the Consulting Business, provides consulting on \[Certain Matters\] as an independent contractor and has contracts with various companies and firms, including \[Type of Firms\]. \[The Individual\] is not an employee of any of these companies and firms, nor does he have any ownership in any of these companies and firms. \[The Individual\] has done work for a \[Type of Firm\], \[the Firm\], that is the \[Professional Services Provider\] for the \[Political Subdivision\]. \[The Individual\] could be utilized in the future to perform additional \[Type of Work\] for \[the Firm\] as an independent contractor. \[The Individual\] is not an employee of \[the Firm\], nor does he have an ownership interest in \[the Firm\]. You ask whether \[the Individual\], if he would be seated as a \[Public Officer\] for the \[Political Subdivision\], would have a conflict of interest with regard to voting on the payment of monthly invoices submitted to the \[Political Subdivision\] by \[the Firm\] or other matters involving \[the Firm\] at such times as he would be providing services to \[the Firm\] as an independent contractor, and if so, whether \[the Individual\] would be permitted to vote on such matters if he would disassociate himself from \[the Firm\]. 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 Confidential Advice, 25-548 November 3, 2025 Page 3 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. “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, Confidential Advice, 25-548 November 3, 2025 Page 4 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” (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. 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. If \[the Individual\] would be seated as a \[Public Officer\] for the \[Political Subdivision\], he would in that capacity be a public official subject to the provisions of the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, \[the Individual\] generally would have a conflict of interest as a \[Public Officer\] in matters before the \[Political Subdivision Governing Body\] that would Confidential Advice, 25-548 November 3, 2025 Page 5 financially impact him, a member of his immediate family, or a business with which he or a member of his immediate family is associated. If \[the Individual\] would perform services for \[the Firm\] as an independent contractor to \[the Firm\], \[the Firm\] would not be considered a business with which he is associated because he would not be a director, officer, owner, employee, or holder of a financial interest in \[the Firm\]. Cf., Confidential Advice 13-554/13-1501 (“For the Firm to be considered a business with which the State Legislator is associated, the State Legislator would have to be a director, officer, owner, employee or holder of a financial interest in the Firm. Status as an independent contractor would not satisfy the Ethics Act’s definition of the term ‘business with which he is associated.’ 65 Pa.C.S. § 1102.”) Id. at 6. The fact that \[the Firm\] would be a client of \[the Individual\] in and of itself would not form the basis of a conflict of interest for \[the Individual\] in matters before the \[Political Subdivision Governing Body\] involving \[the Firm\]. Because \[the Firm\] would not be a business with which \[the Individual\] is associated, \[the Individual\] would not have a conflict of interest in matters before the \[Political Subdivision Governing Body\] that would financially impact \[the Firm\] and not him, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Therefore, absent some basis for a conflict of interest such as a financial impact upon \[the Individual\], a member of his immediate family, or a business with which he or a member of his immediate family is associated, \[the Individual\] would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting on the payment of monthly invoices submitted to the \[Political Subdivision\] by \[the Firm\] or other matters involving \[the Firm\]. Because the determination as to whether \[the Individual\] would have a conflict of interest would be based upon a financial impact as to \[the Individual\], a member of his immediate family, or a business with which he or a member of his immediate family is associated rather than upon his relationship as an independent contractor to \[the Firm\], \[the Individual’s\] disassociation from \[the Firm\] would not affect the determination of whether \[the Individual\] would have a conflict of interest with regard to voting on \[the Firm’s\] monthly invoices or other matters involving \[the Firm\]. 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 Confidential Advice, 25-548 November 3, 2025 Page 6 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