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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 23, 2026
To the Requester:
Jana R. Barnett, Esquire
Dear Ms. Barnett:
26-510
This responds to your letter dated February 3, 2026, by which you requested an advisory
from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the
general issue presented below:
Issue:
Facts:
Whether an individual serving as a member of a borough council, who in her private
capacity as an attorney practices employment law on behalf of plaintiffs, 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 voting on matters pertaining to the
borough's retention of a law firm that may refer employment law cases to the individual.
BriefAnswer: The law firm's referral of employment law cases to the individual would not
serve as a basis for the individual to have a conflict of interest under Section 1103(a) of the
Ethics Act in matters before the borough council involving the law firm. Accordingly,
unless there would be a 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 voting on matters before the borough council pertaining to the
borough's retention of the law firm.
You request an advisory from the Commission based upon the following submitted facts.
Barnett, 26-510
February 23, 2026
Page 2
You are a Member of Council for the Borough of Wyomissing (`Borough"). In your
private capacity as an attorney, you practice employment law on behalf of plaintiffs.
An attorney with a law firm (the "Firm") that has provided services to the Borough for at
least a decade has referred a case to you because the Firm does not practice employment law on
behalf of plaintiffs. The attorney who referred the case to you is not seeking a referral fee from
you.
After you discovered that the Firm and another law firm had been doing business with the
Borough without written retainer agreements, at your suggestion the Borough Finance and
Administration Committee and Borough Council considered and passed motions giving 60 days
to the two law firms to submit retainer agreements to the Borough if they wished to continue
providing services to the Borough. The Firm subsequently submitted a retainer agreement to the
Borough for the consideration of the Borough Finance and Administration Committee and
Borough Council.
Based upon the above submitted facts, you pose the following questions:
(1) Whether you would have a conflict of interest with regard to voting on a retainer
agreement with the Firm or on bills payable to the Firm if you: (a) would confer
with prospective clients referred to you by the Firm; or (b) would be retained by
prospective clients referred to you by the Firm;
(2) Whether a conflict of interest would exist only if you would pay a referral fee to
the Firm;
(3) Whether there would be any limitations on your ability to recommend the Firm to
prospective clients where you would neither seek nor accept a referral fee from the
Firm; and
(4) Whether there would be any other ethical considerations which you have not
anticipated.
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 11030) of the Ethics Act provide:
Barnett, 26-510
February 23, 2026
Page 3
§ 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 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), 11030).
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
Barnett, 26-510
February 23, 2026
Page 4
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.
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
Barnett, 26-510
February 23, 2026
Page 5
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 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 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.
Neither your consultation with and retention by prospective clients referred to you by the
Firm nor your payment of a referral fee to the Firm would serve as a basis for you to have a conflict
of interest under Section 1103(a) of the Ethics Act in matters before Borough Council involving
the Firm. Accordingly, unless there would be a basis for a conflict of interest such as a private
pecuniary (financial) benefit to you, a member of your immediate family, or a business with which
you or a member of your immediate family is associated, you would not have a conflict of interest
as a Borough Council Member with regard to voting on a retainer agreement with the Firm or on
bills payable to the Firm. Additionally, because Section 1103(a) of the Ethics Act imposes
restrictions upon you in your public capacity as a Borough Council Member rather than upon you
in your private capacity as an attorney, the Ethics Act would not prohibit you from recommending
the Firm to prospective clients or from receiving a referral fee from the Firm for a referral.
As noted above, 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
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.
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.
Barnett, 26-510
February 23, 2026
Page 6
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