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HomeMy WebLinkAbout25-554 Dunbar 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 December 12, 2025 To the Requester: Blake E. Dunbar, Jr., Esquire 25-554 Dear Mr. Dunbar: This responds to your letter dated November 20, 2025, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the issue presented below: Issue: Whether an individual serving as a township supervisor, whose spouse was recently elected as the township tax collector, 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 voting on matters that would impact the township tax collector’s compensation, such as the township annual budget or ordinances or resolutions setting additional compensation for the township tax collector for the issuance of tax certifications. Brief Answer: YES. The individual’s spouse is a member of the individual’s “immediate family” as that term is defined in the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, the individual generally would have a conflict of interest in matters before the township board of supervisors that would financially impact the individual or the individual’s spouse. The individual specifically would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting on matters that would impact the township tax collector’s compensation, and the individual would be required to abstain from voting on such matters unless one of the statutory voting conflict exceptions of Section 1103(j) of the Ethics Act would be applicable. Facts: Dunbar, 25-554 December 12, 2025 Page 2 As the Solicitor for Douglass Township (“Township”), Montgomery County, you have been authorized by an individual serving as a Township Supervisor(“the Individual”) torequest an advisory from the Commission on the Individual’s behalf. You have submitted facts that may be fairly summarized as follows. The Township Board of Supervisors (“Board of Supervisors”) consists of three members. In the general election of November 4, 2025, the Individual was elected to serve a second six-year term as a Township Supervisor. At the same time, the Individual’s spouse was elected to serve as the Township Tax Collector. The Board of Supervisors sets the compensation for the Township Tax Collector as line items in the Township annual budget for Tax Collector commission and earned income tax commission. The Township Tax Collector is also entitled to additional compensation as set by Township resolution or ordinance for issuing tax certifications. You seek guidance as to whether the Individual would have a conflict of interest under the Ethics Act with regard to voting on the Township annual budget or Township resolutions or ordinances setting additional compensation for the Township Tax Collector’s issuance of tax certificationsand if so, whether the Individual would be permitted to vote on a Township annual budget or tax-related ordinances or resolutions if matters concerning compensation for the Township Tax Collector would be removed from such and voted on separately by the other two Township Supervisors. 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 Dunbar, 25-554 December 12, 2025 Page 3 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. “Immediate family.” A parent, spouse, child, brother or sister. 65 Pa.C.S. § 1102. Dunbar, 25-554 December 12, 2025 Page 4 Subject to the statutory exclusions to the 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 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 Township Supervisor, the Individual is a public official subject to the provisions of the Ethics Act. The Individual’s spouseis a member of the Individual’s “immediate family” as that term is defined in the Ethics Act.Pursuant to Section 1103(a) of the Ethics Act, the Individual generally would have a conflict of interest in matters before the Board of Supervisors that would financially impact the Individual or the Individual’s spouse. The Individual specifically would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting on matters that would financially impact the Individual’s spouse in the capacity of Township Tax Collector, including but not limited to the Township annual budget or Township resolutions or ordinances setting additional compensation for the Township Tax Collector’s issuance of tax certifications. However, unless there would be a private pecuniary (financial) benefit to the Individual, the Individual’s spouse or another immediate family member, or a business with which the Individual or an immediate family member is associated, the Individual would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting on a Township annual budget or tax-related ordinances or resolutions if matters concerning compensation for the Township Tax Collector would be removed from such and voted on separately by the other two Township Supervisors. In each instance of a conflict of interest, the Individual 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. Dunbar,25-554 December 12, 2025 Page 5 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