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Home My WebLink About26-514 Oister 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 March 3, 2026 To the Requester: Russel Oister 26-514 Dear Mr. Oister: This responds to your submission received February 18, 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 Section 1103(a) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), pertaining to conflict of interest, would prohibit an individual serving as a township supervisor, who in his private capacity is employed with a business that entered into a settlement agreement with the township regarding certain aspects of the business’s operations, from having direct involvement with township staff to advocate on behalf of the business in matters pertaining to the business and its operations in the township. Brief Answer:NO. Because Section 1103(a) of the Ethics Act imposes restrictions upon the individual in his public capacity as a township supervisor rather than upon him in his private capacity, Section 1103(a) would not prohibit the individual, acting purely in his private capacity as an employee of the business, from having direct involvement with township staff to advocate on behalf of the business in matters pertaining to the business and its operations in the township. However, in his capacity as a township supervisor, the individual generally would 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 township board of supervisors pertaining to matters that would financially impact him or the business. Oister, 26-514 March 3, 2026 Page 2 Facts: You were recently elected as a Supervisor for New Hanover Township (“Township”), which is located in Montgomery County. In your private capacity, you are employed with Sunset Hill Brewing (“Sunset Hill”), which operates a brewery (“the Brewery”) in the Township. Before you were elected as a Township Supervisor, Sunset Hill applied to the Township Zoning Hearing Board for variances from the Township Zoning Ordinance to allow the Brewery to engage in certain business activities. After the Township Zoning Hearing Board granted the requested variances subject to several conditions, Sunset Hill and the Township appealed the decision. Sunset Hill and the Township subsequently entered into a negotiated settlement agreement (“the Settlement Agreement”) that contains several action items for Sunset Hill to complete within a certain time period. As part of the conditions of the Settlement Agreement, the Township and Sunset Hill are working together to amend a deed of conservation and an operations and maintenance agreement for the Brewery’s property. After the Settlement Agreement was reached, the Township issued a notice of violation with regard to the keeping of food trucks on the Brewery’s property, which was contrary to the terms of the Settlement Agreement. Sunset Hill eventually complied with the Township’s demands on this issue. Prior to taking office as a Township Supervisor, as part of your work with Sunset Hill you had direct involvement with Township staff to advocate on behalf of Sunset Hill with regard to interpretation of the Settlement Agreement, building and fire codes, and zoning provisions. Based upon the above submitted facts, you pose the following questions: (1) Whether the Ethics Act would permit you to have direct involvement with Township staff to advocate on behalf of Sunset Hill with regard to interpretation of the Settlement Agreement, building and fire codes, and zoning provisions; (2) Whether the Ethics Act would permit you to have direct involvement with Township staff to advocate on behalf of Sunset Hill with regard to litigation involving Sunset Hill; (3) Whether the Ethics Act would permit you to have direct involvement with Township staff to advocate on behalf of Sunset Hill with regard to notices of violation related to litigation involving Sunset Hill; and (4) Whether the Ethics Act would allow you to apply for permits and have direct involvement with Township staff with regard to matters pertaining to your personal residence. 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 Oister, 26-514 March 3, 2026 Page 3 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 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), (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 Oister, 26-514 March 3, 2026 Page 4 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 employeehimself, 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: Oister, 26-514 March 3, 2026 Page 5 … 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 Township Supervisor, you are a public official subject to the provisions of the Ethics Act. Sunset Hill is a business with which you are associated in your capacity as an employee. Pursuant to Section 1103(a) of the Ethics Act, you generally would have a conflict of interest in matters before the Township Board of Supervisors that would financially impact you or Sunset Hill. Section 1103(a) of the Ethics Act imposes restrictions upon you in your capacity as a Township Supervisor rather than upon you in your private capacity. Therefore, Section 1103(a) of the Ethics Act would not prohibit you, acting purely in your private capacity as an employee of Sunset Hill, from having direct involvement with Township staff to advocate on behalf of Sunset Hill with regard to: (1) interpretation of the Settlement Agreement, building and fire codes, and zoning provisions; (2) litigation involving Sunset Hill; or (3) notices of violation related to litigation involving Sunset Hill. Section 1103(a) further would not prohibit you, acting purely as a private citizen, from applying for permits and having direct involvement with Township staff with regard to matters pertaining to your personal residence. However, in your capacity as a Township Supervisor, you would have a conflict of interest under Section 1103(a) with regard to participating in discussions, votes, or other actions of the Township Board of Supervisors pertaining to matters that would financially impact Sunset Hill or you (either as a private property owner or as an employee of Sunset Hill) unless the “de minimis exclusion” or the “class/subclass exclusion” to the definition of “conflict” or “conflict of interest” as set forth in Section 1102 of the Ethics Act would be applicable. 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 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. Oister, 26-514 March 3, 2026 Page 6 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 theAdvice 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 scheduledand 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