HomeMy WebLinkAbout26-509 Mueller - Barge - Jones
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 17, 2026
To the Requester:
Emily J. Mueller,Esquire
26-509
Dear Ms. Mueller:
This responds to your letter dated February 2, 2026, by which you requested an advisory
from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the
general issue presented below:
Issue:
Whether a self-employed realtor serving as a member of a borough zoning hearing board
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 participating in
matters involving an application before the borough zoning hearing board where the
applicant is a current client, a former client, or a prospective client of the realtor.
Brief Answer: Pursuant to Section 1103(a) of the Ethics Act, the realtor generally would
have a conflict of interest in matters before the borough zoning hearing board that would
financially impact her, a member of her immediate family, or a business with which she or
a member of her immediate family is associated. Accordingly, the realtor would not have
a conflict of interest with regard to participating in matters involving an application
submitted by a current client, a former client, or a prospective client of the realtor unless
the borough zoning hearing board’s action on the application would financially impact the
realtor, a member of her immediate family, or a business with which she or a member of
her immediate family is associated.
Facts:
You have been authorized by Kathe Barge (“Ms. Barge”) and Robyn Jones (“Ms. Jones”)
to request an advisory from the Commission on their behalf. You have submitted facts that may
be fairly summarized as follows.
Mueller, 26-509
February 17, 2026
Page 2
Council for Sewickley Borough (“Borough”) recently appointed Ms. Barge and Ms. Jones
to the Borough Zoning Hearing Board, which consists of five Members. The Borough Zoning
Hearing Board has the authority to rule upon requests for variances or special exceptions, appeals
of determinations of the Sewickley Borough Zoning Hearing Officer, and challenges to the
substantive validity of the Borough Zoning Ordinance.
Ms. Barge and Ms. Jones are self-employed realtors affiliated with Piatt Sotheby’s
International Realty in the Borough. Ms. Barge and Ms. Jones conduct marketing activities in the
Borough that include advertising in the Borough’s local newspaper, maintaining a professional
social media presence, and distributing newsletters or other marketing materials to individuals who
are prospective clients.
As realtors, Ms. Barge and Ms. Jones represent clients in real estate transactions involving
properties located in the Borough. Ms. Barge’s and Ms. Jones’ contractual relationships with their
clients terminate based upon the specific terms set forth in their written agreements with their
clients. The conditions upon which the realtor-client relationship would terminate generally
include: (1) the closing on the purchase or sale of real property identified in the agreement and
payment of commission and fees; (2) the passage of a specified period of time without the purchase
or sale of real property identified in the agreement; or (3) mutual agreement of the parties.
Based upon the above submitted facts, you seek guidance with regard to Ms. Barge's and
Ms. Jones’ ability to participate in matters pertaining to applications before the Borough Zoning
Hearing Board where the applicant or the property involved would have some type of connection
with Ms. Barge’s or Ms. Jones’ activities as realtors. Because your advisory request presents the
same scenarios and questions with regard to the proposed conduct of each Borough Zoning
Hearing Board Member/realtor, for simplicity this advisory shall refer to Ms. Barge and Ms. Jones
each as “the Individual” hereinafter.
You pose the following questions:
(1) Whether the Individual would have a conflict of interest with regard to voting on
an application that was submitted by one of her current clients and:
(a) the matter involves the property for which the Individual is representing the
current client as the current client’s realtor; or
(b) the matter does not involve the property for which the Individual is
representing the current client as the current client’s realtor;
(2) Whether the Individual would have a conflict of interest with regard to voting on
an application that was submitted by one of her former clients and:
(a) the matter involves the property for which the Individual represented the
former client as the former client’s realtor; or
Mueller, 26-509
February 17, 2026
Page 3
(b) the matter does not involve the property for which the Individual
represented the former client as the former client’s realtor;
(3) Whether the Individual would have a conflict of interest with regard to voting on
an application involving a property that the applicant/current property owner
purchased in a transaction in which the Individual represented the seller of the
property;
(4) Whether the Individual would have a conflict of interest with regard to voting on
an application involving a property for which the Individual represented a buyer or
seller of the property in a transaction that occurred prior to the applicant’s/current
property owner’s acquisition of the property;
(5) To the extent that the Individual would have a conflict of interest with regard to
participating in the consideration of an application submitted by a former client,
would the conflict of interest be permanent as to that former client and if not, what
specific amount of time would need to pass in order for the conflict of interest to
be eliminated;
(6) Whether the Individual would have a conflict of interest with regard to considering
an application from an applicant who does not have a written or verbal agreement
for the Individual’s services as a realtor but who:
(a) may have seen a newspaper article, social media post, or other marketing
material published by the Individual to the general public for the purpose of
advertising the Individual’s services; or
(b) was the recipient of a targeted newsletter or other marketing material sent
by the Individual;
(7) Whether the Individual would have a conflict of interest with regard to participating
in the consideration of an application submitted by an applicant who was on the
other side of a real estate transaction that involved a client represented by the
Individual; and
(8) In the event of a conflict of interest, whether the Individual would be precluded
from:
(a) asking questions about the application in her capacity as a Borough Zoning
Hearing Board Member during the public hearing on the application;
(b) providing comments on the application in her capacity as a Borough Zoning
Hearing Board Member during the public hearing on the application; or
(c) participating in any executive session held by the Borough Zoning Hearing
Board with regard to the application.
Mueller, 26-509
February 17, 2026
Page 4
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
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:
Mueller, 26-509
February 17, 2026
Page 5
§ 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.
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.
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
Mueller, 26-509
February 17, 2026
Page 6
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 Member of the Borough Zoning Hearing Board, the Individual is a publicofficial
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 in matters before the Borough Zoning
Hearing Board that would financially impact her, a member of her immediate family, or a business
with which she or a member of her immediate family is associated.
Whether the Individual would have a conflict of interest under Section 1103(a) of the
Ethics Act with regard to participating in action by the Borough Zoning Hearing Board on an
application does not hinge upon whether the applicant is a current, former, or prospective client of
the Individual or whether the application involves a property that has some type of connection to
the Individual’s current or past activities as a realtor. Instead, the existence of a conflict of interest
depends upon whether the Borough Zoning Hearing Board’s action on the application would
financially impact the Individual, a member of her immediate family, or a business with which she
or a member of her immediate family is associated.
Accordingly, you are advised that absent some basis for a conflict of interest such as a
private pecuniary (financial) benefit to the Individual, a member of her immediate family, or a
business with which she or a member of her immediate family is associated, the Individual would
not have a conflict of interest with regard to participating in the consideration of or voting on an
application:
(1) that was submitted by a current client for a matter: (a) involving the property for
which the Individual is representing the current client as the current client’s realtor;
Mueller, 26-509
February 17, 2026
Page 7
or (b) involving a property other than the property for which the Individual is
representing the current client as the current client’s realtor;
(2) that was submitted by a former client for a matter: (a) involving the property for
which the Individual represented the former client as the former client’s realtor; or
(b) involving a property other than the property for which the Individual
represented the former client as the former client’s realtor;
(3) that involves a property that the applicant/current property owner purchased in a
transaction in which the Individual represented the seller of the property;
(4) that involvesa property for which the Individual had represented a buyer or seller
of the property in a transaction that occurred prior to the applicant’s/current
property owner’s acquisition of the property;
(5) that involves an application from an applicant who does not have a written or verbal
agreement for the Individual’s services as a realtor but who: (a) may have seen a
newspaper article, social media post, or other marketing material published by the
Individual to the general public for the purpose of advertising the Individual’s
services; or (b) was the recipient of a targeted newsletter or other marketing
material sent by the Individual; or
(6) that was submitted by an applicant who was on the other side of a real estate
transaction that involved a client represented by the Individual.
In each instance of a conflict of interest, the Individual would be required to abstain from
participation, including but not limited to asking questions about the application, providing
comments on the application, and taking part in an executive session held by the Borough Zoning
Hearing Board with regard to the application. The Individual further would be required to abstain
from voting on the application 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
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.
Mueller,26-509
February 17, 2026
Page 8
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