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HomeMy WebLinkAbout26-525 ConfidentialPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 304 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL April 23, 2026 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov 26-525 This responds to your letter dated March 27, 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 the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et sec .., would impose prohibitions or restrictions upon an individual employed as the [Position] of the [Body] with regard to applying for funding from the [Program] for the implementation of [Type of Practices] on the individual's [Business Property], where the individual worked on the legislation that established the [Program] and its primary funding source, the [Fund]. Brief Answer: NO. Pursuant to judicial precedent, because the [Body] was established by an interstate agreement, the Ethics Act does not apply to the [Body]. Consequently, the Ethics Act would not impose prohibitions or restrictions upon the individual employed as the [Position] of the [Body] with regard to applying for funding from the [Program] for the implementation of [Type of Practices] on the individual's [Business Property]. Facts: You are the [Position] of the [Body], which was created by the enactment of concurrent legislation by [Various States]. Pennsylvania's enabling legislation for the [Body], the [Body] Agreement, is found at [Cite]. The [Body] Agreement provides, in pertinent part, as follows: [Redacted] [Cite]. Confidential Advice, 26-525 April 23, 2026 Page 2 As the [Position] of the [Body], you report to the [Title] of the [Body] and the appointed Members of the [Body]. Your duties include [Engaging in Certain Activities]. In your role with the [Body], you [Provided Assistance] with regard to bills sponsored by the [Body] that resulted in the establishment of the [Program] (see, [Cite]) and its primary funding source, the [Fund] (see, [Cite]). You [and Members of Your Immediate Family] [Engage in Business Activities on Property] in [County]. The [Business Property] is eligible for funding under the [Program] for the implementation of [Type of Practices] on the [Business Property]. The [Program] is administered by the [Governmental Body], and decisions regarding funding contracts with [Applicants for Funds] are made at the [Type of Governmental Unit] level. Your duties with the [Body] do not involve any oversight or direct involvement with the [Governmental Body] or the [Governmental Unit] . You seek guidance as to whether the Ethics Act would impose any prohibitions or restrictions upon you with regard to applying for or receiving funding from the [Program] for the implementation of [Type of Practices] on the [Business Property]. Discussion/Conclusion: 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 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 relevantto 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. In responding to your inquiry, the threshold question to be addressed is whether you are subject to the Ethics Act in your capacity as the [Position] of the [Body]. Based upon judicial precedent, the answer to this question is dependent upon whether the application of the Ethics Act to the [Body] would constitute an impermissible imposition of additional duties on the [Body] in violation of the [Body] Agreement. In Delaware River Port Authority v. State Ethics Commission, 585 A.2d 587 (Pa. Cmwlth. 1991), the Commonwealth Court of Pennsylvania held that the Ethics Act does not apply to the Delaware River Port Authority ("Authority") or its officers, commissioners, or employees. The Court noted that the Authority was created pursuant to an interstate compact between Pennsylvania and New Jersey. The Court observed that by entering into such a compact, a state surrenders a portion of its own sovereignty, and the lawful limit of the state's power is imposed by the interstate compact. The Court stated that bi-state agencies such as the Authority are not immune from regulation and that a bi-state agency may be subject to regulation where the member states pass joint legislation imposing additional duties, as contemplated by the compact, or where the compact itself authorizes unilateral legislation imposing additional duties. Because Pennsylvania and New Jersey had not passed joint legislation and the interstate compact that created the Authority did not expressly authorize unilateral legislation, the Court concluded that an application of the Ethics Act to the Authority would constitute an impermissible imposition of additional duties on the Authority in violation of the interstate compact. Confidential Advice, 26-525 April 23, 2026 Page 3 Based upon the Court's reasoning in Delaware River Port Authority, supra, the necessary conclusion is that the Ethics Act does not apply to the [Body]. The lawful limit of the Commonwealth's power over the [Body] is imposed by the [Body] Agreement, which does not expressly authorize the Commonwealth to apply the Ethics Act to the [Body]. Because the [Body] Agreement provides that it shall not be modified except with the concurrence of the legislatures of the member states, a unilateral application of the Ethics Act to the [Body] would constitute an impermissible imposition of additional duties on the [Body] in violation of the [Body] Agreement. Therefore, in your capacity as the [Position] of the [Body], you are not subject to the provisions of the Ethics Act that apply to public officials and public employees.' Accordingly, you are advised that the Ethics Act would not impose prohibitions or restrictions upon you with regard to applying for or receiving funding from the [Program] for the implementation of [Type of Practices] on the [Business Property]. 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 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. 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 ' The only provision of the Ethics Act that applies to you is Section 1103(b), which applies to everyone. Section 1103(b) of the Ethics Act provides, in pertinent part, that no person shall offer or give to a public official/public employee anything of monetary value based on the offeror's or donor's understanding that the vote, official action or judgment of the public official/public employee would be influenced thereby.