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HomeMy WebLinkAbout26-505 PricePHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: Wayne Price Dear Mr. Price: STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 304 HARRISBURG, PA 17120-0400 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov ADVICE OF COUNSEL February 2, 2026 26-505 This responds to your letter dated January 8, 2026, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the issue presented below: Issue: Whether a borough council member 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 participating in discussions, votes, or other actions of the borough council pertaining to the borough's potential acceptance of a subdivision's roads, where the borough council member owns a property located within the subdivision and would no longer be required to pay the subdivision's property owners association an annual road maintenance fee if the borough would accept the subdivision's roads. Brief Answer: NO. The borough council member would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in discussions, votes, or other actions of the borough council pertaining to the borough's potential acceptance of the subdivision's roads. This is because under the submitted facts, the borough council member's action would affect to the same degree all members of a subclass consisting of himself and the other owners of property located within the subdivision, such that the class/subclass exclusion to a conflict of interest would be applicable. i 'Pursuant to the definition of "conflict" or "conflict of interest" set forth in Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102, action 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 Price, 26-505 February 2, 2026 Page 2 Facts: You are a Member of Council for Marklesburg Borough (the "Borough"). You own and reside at a property located in the Raystown Farms Subdivision (the "Subdivision"), which consists of approximately 40 properties. Every owner of property located in the Subdivision pays an annual road maintenance fee totaling $130 to the Subdivision Property Owners Association to cover basic repairs of the Subdivision's roads. An inquiry has been made as to the potential of the Subdivision's roads being accepted by the Borough. The annual road maintenance fee paid by owners of property located in the Subdivision would be eliminated in the event of the Borough's acceptance of the Subdivision's roads. You seek guidance as to whether the Ethics Act would permit you to participate in discussions, votes, or other actions of Borough Council pertaining to the Borough's potential acceptance of the Subdivision's roads. Discussion: It is initially noted that 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 of the 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 of the 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 family, or a business with which he or a member of his immediate family is associated, does not constitute a conflict of interest. Price, 26-505 February 2, 2026 Page 3 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), 0). 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. 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 Price, 26-505 February 2, 2026 Page 4 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. A conflict of interest would not exist to the extent the "class/subclass" exclusion set forth within the Ethics Act's definition of the term "conflict" or "conflict of interest" would be applicable. In order for the class/subclass exclusion to apply, two criteria must be met: (1) the affected public official/public employee, immediate family member, or business with which the public official/public employee or immediate family member is associated must be a member of a class consisting of the general public or a true subclass consisting of more than one member; and (2) the public official/public employee, immediate family member, or business with which the public official/public employee or immediate family member is associated must be affected "to the same degree" (in no way differently) than the other members of the class/subclass. 65 Pa.C.S. § 1102; see, Kablack, Opinion 02-003; Rubenstein, Opinion 01-007. The first criterion of the exclusion is satisfied where the members of the proposed subclass are similarly situated as the result of relevant shared characteristics. The second criterion of the exclusion is satisfied where the individual/business in question and the other members of the class/subclass are reasonably affected to the same degree by the proposed action. Kablack, supra. C'nnclnsinn_ In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As a Member of Borough Council, you are a public official subject to the provisions of the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, you generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters before Borough Council 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. Because you own property located in the Subdivision and would no longer have to pay the annual road maintenance fee to the Subdivision Property Owners Association if the Subdivision's roads would be accepted by the Borough, you would have a conflict of interest in matters before Borough Council pertaining to the potential acceptance of the Subdivision's roads unless the class/subclass exclusion would be applicable. Based upon the submitted facts, you are a member of a subclass that consists of all owners of property located in the Subdivision. Given the submitted fact that every owner of property located in the Subdivision pays the same annual road maintenance fee, each member of the subclass would be affected to the same degree by the Borough's acceptance of the Subdivision's roads and the resultant elimination of the annual road maintenance fee. As such, the class/subclass exclusion would be applicable, and you would not have a conflict of interest with regard to participating in discussions, votes, or other actions of Borough Council pertaining to the Borough's potential acceptance of the Subdivision's roads. Price, 26-505 February 2, 2026 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 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