HomeMy WebLinkAbout26-523 Lingenfelter
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
April 8, 2026
To the Requester:
Izen Lingenfelter
26-523
Dear Mr. Lingenfelter:
This responds to your letter dated March15,2026, by which you requested an advisory
from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the 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 borough councilperson, who in his private capacity owns a retail business, from selling
products to the professional association of boroughs for use at a social gathering at the
association’s annual conference and from selling additional products from his private
business at the social gathering of borough councilpersons held at the annual conference,
when the individual’s attendance and lodging at the annual conference are paid by the
borough where he serves as councilperson.
Brief Answer: Section 1103(a) of the Ethics Act, pertaining to conflict of interest, imposes
restrictions upon the individual in his capacity as a borough councilperson rather than upon
him in his private capacity. Therefore, Section 1103(a) of the Ethics Act would not prohibit
or restrict the individual, in his private capacity as the owner of a retail business,from
selling products from his private business to the professional association of boroughs for
use at a social gathering at the association’s annual meeting. However, in his public
capacity as a borough councilperson, the individual would have a conflict of interest under
Section 1103(a) of the Ethics Act with regard to selling additional products from his private
business at the social gathering of borough councilpersons when his attendance and lodging
at the annual conference are paid by the borough where he serves as a councilperson.
Lingenfelter, 26-523
April 8, 2026
Page 2
Facts:
You request an advisory from the Commission based upon the following submitted facts.
You are a Councilperson for the Borough of Houtzdale, located in Clearfield County,
Pennsylvania. In your private capacity you are the owner and operator of a business known as
“Ragtime Cigars.”
Each year you attend the annual conference hosted by the Pennsylvania State Association
of Boroughs (PSAB”) in Hershey, Pennsylvania. This conference includes educational sessions,
networking opportunities, and scheduled free leisure periods where attendees are not participating
in formal programming. Several years ago, you suggested organizing a cigar social during one of
the leisure periods as an informal networking opportunity for borough officials attending the
annual conference. At that time, a local cigar shop in the Hershey area hosted the event. That local
cigar shop is no longer in business, so PSAB representatives have asked if you would facilitate
this year’s cigar social.
Under the proposed arrangement, PSAB would purchase six to eight boxes of cigars from
your private business, and those cigars would be distributed free of charge to conference attendees
during the cigar social. You would facilitate the event by providing a tent, tables, music, and cigar
instruction/education at no cost to PSAB or attendees. You may also bring additional cigars from
your private business to sell to attendees who wish to purchase additional cigars.
Your attendance at the PSAB annual conference is paid for by the Borough of Houtzdale,
including your conference registration, lodging, and mileage reimbursement.
You seek guidance as to whether your facilitation of the cigar social, including the
possibility of selling cigars from your private business to attendees, would constitute a conflict of
interest under the Ethics Act considering that the Borough of Houtzdale pays for your conference
attendance.
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)of the Ethics Act provides:
§ 1103. Restricted activities
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April 8, 2026
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(a) Conflict of interest. -- No public official or public
employee shall engage in conduct that constitutes a conflict of
interest.
65 Pa.C.S. § 1103(a).
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.
“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.
Lingenfelter, 26-523
April 8, 2026
Page 4
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 Borough Councilperson, you are a public official subject to the provisions of the
Ethics Act.Ragtime Cigars is a business with which you are associated in your capacity as owner
of the business.
Section 1103(a) of the Ethics Act imposes restrictions upon you in your capacity as a
Borough Councilperson rather than upon you in your private capacity. Therefore, Section 1103(a)
of the Ethics Act would not prohibit you, acting in your private capacity as the owner of Ragtime
Cigars, from selling cigars to PSAB for distribution free of charge to conference attendees during
the cigar social.
However, as it pertains to selling cigars from your private business to attendees of the cigar
social at the annual conference, it would be difficult if not impossible not to transgress Section
1103(a) of the Ethics Act given that but for your position as Borough Councilperson you would
not be attending the conference and the fact that the Borough of Houtzdale is paying your
attendance fees, lodging, and mileage reimbursementto attend said conference. Accordingly, there
would be an inherent conflict where your position as a Borough Councilman and your attendance
at the PSAB annual conference are so inextricably intertwined that any attempt for financial gain
through the selling of cigars at the annual conference would be impermissible under the Ethics
Act.
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
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April 8, 2026
Page 5
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