Loading...
HomeMy WebLinkAbout26-526 HyerPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 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 April 27, 2026 To the Requester: Randall N. Hyer, M.D. Dear Dr. Hyer: 26-526 This responds to your letter dated April 6, 2026, by which you requested an 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 prohibit an individual from continuing to serve as a Member of the Board of Directors ("Board") of the Bucks County Airport Authority ("Authority"), where: (1) the Authority oversees the operation of Doylestown Airport and other airports; (2) the Authority contracts with a company known as "Leading Edge Aviation, Inc." ("LEA") to serve as the operator of Doylestown Airport; and (3) the individual is the defendant in a lawsuit that LEA filed against him for the alleged non-payment of costs for aircraft repairs and maintenance for the individual's personal aircraft. Brief Answer: NO. The Ethics Act would not prohibit the individual from continuing to serve as a Member of the Authority Board while the individual is the defendant in the lawsuit filed against him by LEA. However, pursuant to Section 1103(a) of the Ethics Act (pertaining to conflict of interest), the individual generally would be prohibited from using the authority of his public position as an Authority Board Member or confidential information received by holding his public position in furtherance of his interests in the lawsuit. Hyer, 26-526 April 27, 2026 Page 2 Facts: You were appointed by the Bucks County Commissioners to serve as a Member of the Authority Board. The Authority was created pursuant to the Municipality Authorities Act. As a Member of the Authority Board, your duties involve overseeing the management and operation of Doylestown Airport, Quakertown Airport, and Van Sandt Airport. The Authority contracts with LEA to serve as the "fixed base operator" of Doylestown Airport. LEA operates Doylestown Airport's main functions along with operational staff and third -parry contractors hired by the Authority. Before you were appointed to the Authority Board, LEA filed an amended complaint in a lawsuit that LEA filed against you ("the Lawsuit") in the Bucks County Court of Common Pleas. The amended complaint alleges that you failed to pay LEA for maintenance and repair services that it performed on your personal aircraft. You subsequently filed a counterclaim against LEA, alleging that improper workmanship by LEA damaged your aircraft. You do not believe that you will derive any pecuniary gain from the Lawsuit as your counterclaim principally seeks compensatory damages. LEA, through its attorney, has alleged that you must be removed from the Authority Board due to a conflict of interest under the Ethics Act. You state that the Authority Board, through its solicitor and pursuant to meetings of its Members, has determined that it is possible for you to remain on the Authority Board subject to strict recusal and abstention protocols and segregation of certain information that may be deemed by LEA or the Authority to constitute a conflict of interest under the Ethics Act. You have submitted copies of the "Bucks County Airport Authority Board Member Conflict of Interest and Ethics Compliance Guidelines" ("the Board Member Guidelines"") and the "Ethics and Conflict of Interest Guidelines Applicable to Randall Hyer" ("the Randall Hyer Guidelines"), both of which were adopted by the Authority Board in March 2026. It is noted that the Randall Hyer Guidelines provide, in pertinent part, as follows: Ethics and Conflict of Interest Guidelines Applicable to Randall Hver Given the potential ethical and conflict of interest issues specific to Board member Randall Hyer derived from his lawsuit with Leading Edge Aviation, Inc. ("LEA") the Board adopts the following additional specific guidelines. These guidelines are in addition to and not in replacement of [the Board Member Guidelines] adopted on March 11, 2026. Hyer, 26-526 April 27, 2026 Page 3 2. Mr. Heyer shall strictly follow the Recusal Procedures in Section 4 of the Guidelines on all matters coming before the Board that directly involve LEA.... 3. Mr. Hyer shall not participate in any vote or decision - making involving LEA or that could reasonably be deemed to affect LEA. Mr. Hyer shall abstain from voting on all matters that involve LEA. 4. Mr. Hyer shall not be permitted to view or obtain copies of any financial statements, allocation of costs or similar records concerning LEA and such information shall be segregated and made available only through a right to know request to the Authority right to know officer. 5. Mr. Hyer shall not be permitted to serve on the Doylestown Subcommittee nor participate in any of that subcommittee's meetings, votes or decisions. 6. Mr. Hyer shall not be permitted to participate in any lease negotiations involving LEA nor be present during any meeting or executive session that involves such lease negotiations. 7. These guidelines shall remain in full force and effect during the pendency of the lawsuit and until such lawsuit is either settled, judicially determined through court proceedings and upon satisfaction of any judgment. 8. The Board reserves the right to change or modify these guidelines as it deems necessary. Any violation of these guidelines by Mr. Hyer could result in removal from the Board. Randall Hyer Guidelines, at 1-2. You seek guidance as to whether the remedial measures in place as detailed in the Board Member Guidelines and the Randall Hyer Guidelines would be sufficient under the Ethics Act to allow you to continue serving as a Member of the Authority Board while you are the defendant in the Lawsuit. Hyer, 26-526 April 27, 2026 Page 4 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 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 11030) 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. 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), 0). The following terms related to Section 1103(a) are defined in the Ethics Act as follows: Hyer, 26-526 April 27, 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. 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 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. 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 Hyer, 26-526 April 27, 2026 Page 6 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 Authority Board, you are a public official subject to the provisions of the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act (pertaining to conflict of interest), you generally would be prohibited from using the authority of your public position as an Authority Board Member or confidential information received as a result of holding your public position for the private pecuniary (financial) benefit of yourself, a member of your immediate family, or a business with which you or a member of your immediate family is associated. The Ethics Act would not prohibit you from continuing to serve as an Authority Board Member while you are the defendant in the Lawsuit. However, you would be prohibited from using the authority of your public position as an Authority Board Member or confidential information received as a result of holding your public position in furtherance of your interests in the Lawsuit. If followed, the Board Member Guidelines and the Randall Hyer Guidelines would appear to be sufficient to avoid the potential for you to have a conflict of interest in performing the duties and responsibilities of your position as an Authority Board Member. 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. Hyer, 26-526 April 27, 2026 Page 7 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