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HomeMy WebLinkAbout26-507 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 304 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL February 5, 2026 To the Requester: 26-507 This responds to your letter dated January 15, 2026, by which you requested a confidential advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the issue presented below: Issue: Whether, pursuant to Section 1103(a) ofthe Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), a \[Political Subdivision Public Officer\] who serves as a member of a \[Type of Governmental Body\] that was established by the \[Political Subdivision\] pursuant to the \[Title of Act, Citation\] would have a conflict of interest with regard to: (1) voting to approve funding to the \[Political Subdivision’s Public Body\]; or (2) voting to approve a loan agreement or grant agreement between the \[Political Subdivision\] and the \[Political Subdivision’s Public Body\]. Brief Answer: NO. The \[Political Subdivision Public Officer\] would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting to approve funding to the \[Political Subdivision’s Public Body\] or voting to approve a loan agreement or grant agreement between the \[Political Subdivision\] and the \[Political Subdivision’s Public Body\] because under the submitted facts, the requisite element of a prohibited private pecuniary (financial) benefit to the \[Political Subdivision Public Officer\], a member of the \[Political Subdivision Public Officer’s\] immediate family, or a business with which the \[Political Subdivision Public Officer\] or a member of his immediate family is associated would be lacking. Facts: You have been authorized by \[Name of Individual\] (the “Individual”), who is a \[Public Officer\] for the \[Political Subdivision\], Pennsylvania, to request a confidential advisory from the Commission on his behalf. You have submitted facts that may be fairly summarized as follows. Confidential Advice, 26-507 February 5, 2026 Page 2 In \[Year\] the \[Political Subdivision Governing Body\] enacted an ordinance that established the \[Name of Governmental Body\] (“the Governmental Body”) pursuant to Section \[Number\] of the \[Title of Act, Citation\]. As a result of the establishment of the Governmental Body, the \[Public Subdivision’s Public Body\] is able to \[Exercise Certain Governmental Powers\]. The Governmental Body’s functions include \[Making Certain Determinations That Are Provided\] to the \[Public Subdivision’s Public Body\] for the \[Public Subdivision’s Public Body\] to consider \[Taking Certain Actions\]. The Governmental Body additionally may advise the \[Political Subdivision\] and the \[Public Subdivision’s Public Body\] on matters relating to the provision of \[Types of Assistance on Certain Financial Matters\]. In accordance with Section \[Number\] of the \[Title of Act\], at least one Member of the Governmental Body must be a \[Political Subdivision Public Officer\]. The Individual, in his capacity as a \[Political Subdivision Public Officer\], has served as a Member of the Governmental Body since \[Year\]. Based upon the above submitted facts, you pose the following questions: (1) Whether the Individual, as a \[Political Subdivision Public Officer\], would have a conflict of interest with regard to voting to approve funding to the \[Political Subdivision’s Public Body\]; (2) Whether the Individual, as a \[Political Subdivision Public Officer\], would have a conflict of interest with regard to voting to approve a loan agreement or grant agreement between the \[Political Subdivision\] and the \[Political Subdivision’s Public Body\]; and (3) Whether, in the event of voting conflicts as to the above situations, the Individual would be permitted to take action if he would follow the procedures outlined in Section 1103(j) of the Ethics Act. 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. An advisory opinion only affords a defense to the extent the requester has truthfully disclosed all material facts. In issuing an advisory opinion, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to acts that have not been submitted. It is the burden of the requester to truthfully disclose allmaterial facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). Sections 1103(a) and 1103(j) of the Ethics Act provide: § 1103. Restricted activities Confidential Advice, 26-507 February 5, 2026 Page 3 (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 membersof 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), (j). The following termsare 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. Confidential Advice, 26-507 February 5, 2026 Page 4 “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,” 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. 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 \[Political Subdivision Public Officer\] and as a Member of the Governmental Body, the Individual is a public official subject to the provisions of the Ethics Act. In each of his capacities as a public official, the Individual generally would have a conflict of interest under Confidential Advice, 26-507 February 5, 2026 Page 5 Section 1103(a) of the Ethics Act in matters that would financially impact him, a member of his immediate family, or a business with which he or a member of his immediate family is associated. A pecuniary (financial) benefit flowing solely to a governmental entity such as the \[Political Subdivision’sPublic Body\] would not form the basis for a conflict of interest under Section 1103(a) of the Ethics Act. See, Confidential Opinion, 01-005; McCarrier/Anderson, Opinion 98-008; Warso, Order 974. Accordingly, because the submitted facts do not indicate the existence of a basis for a conflict of interest such as a private pecuniary benefit to 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, as a \[Political Subdivision Public Officer\], would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting to approve funding to the \[Political Subdivision’s Public Body\]or voting to approve a loan agreement or grant agreement between the \[Political Subdivision\]and the \[Political Subdivision’s Public Body\]. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, an Adviceof Counsel 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