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HomeMy WebLinkAbout25-553 Piontek 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 24, 2025 To the Requester: Deborah A. Piontek 25-553 Dear Ms. Piontek: This responds to your email received November 18, 2025, by which you requested an 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), a borough council member, who in a private capacity is a member of the board of directors of an ambulance service that provides services covering the borough and other municipalities, would have a conflict of interest with regard to voting on borough monetary donations to the ambulance service to assist it with its operating costs or other matters that would financially impact the ambulance service. Brief Answer: YES. Because the ambulance service is a business with which the borough council member is associated in her capacity as a director, pursuant to Section 1103(a) of the Ethics Act, the borough council member generally would have a conflict of interest with regard to voting on borough monetary donations to the ambulance service or other matters that would financially impact the ambulance service. Facts: You In a private capacity, you are a Member of the Board of Directors of the Lower Valley Ambulance -profit organization. The Ambulance Service provides services that cover five municipalities, including the Borough. On occasion the Piontek, 25-553 November 24, 2025 Page 2 Ambulance Service has asked these five municipalities for monetary donations to assist it with its operating costs. You seek guidance as to whether the Ethics Act would impose any prohibitions or restrictions upon you with regard to voting on Borough monetary donations to the Ambulance Service or other matters that would financially impact the Ambulance Service. 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 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 Piontek, 25-553 November 24, 2025 Page 3 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. 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. An economic consequence which has an insignificant effect. 65 Pa.C.S. § 1102. (i.e. 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 Piontek, 25-553 November 24, 2025 Page 4 immediate family, or a business with which he or a member of his immediate family is associated. -profit organization. Rendell v. State Ethics Commission, 603 Pa. 292, 983 A.2d 708 (2009). 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. having a de minimis (insignificant) economic impact. Thus, when a matter that would otherwise constitute a conflict of interest under the Ethics Act would have an insignificant economic impact, a conflict would not exist and Section 1103(a) of the Ethics Act would not be implicated. See, Kolb, Order 1322; Schweinsburg, Order 900. The applicability of the de minimis exclusion is determined on a case-by-case basis, considering all relevant circumstances. Seropian v. State Ethics Commission, 20 A.3d 534 (Pa. Cmwlth. 2011). The Commonwealth Court of Pennsylvania has found the amounts of $561 and $640 to be de minimis. See, Seropian, supra; Bixler v. State Ethics Commission, 847 A.2d 785 (Pa. Cmwlth. 2004). Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As a Borough Council Member, you would be considered a public official subject to the provisions of the Ethics Act. The Ambulance Service is a business with which you are associated in your capacity as a Director. Pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest with regard to voting on Borough monetary donations to the Ambulance Service to assist it with its operating costs or other matters that would financially impact the Ambulance Service unless the private pecuniary (financial) benefit to the Ambulance Service would be de minimis. 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 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. 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 Piontek, 25-553 November 24, 2025 Page 5 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