Loading...
HomeMy WebLinkAbout26-532 Labelle 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 May 26, 2026 To the Requester: Paul J. LaBelle, Esquire 26-532 Dear Mr. LaBelle: This responds to your letter dated May 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 voting conflict exception of Section 1103(j) of the Public Official and 1 Employee Ethics Act (“Ethics Act”) that applies to three-member governing bodies of political subdivisions would permit an individual who serves on the Board of the AVP Bi- County Partnership (“Partnership”), which operates the Wilkes-Barre/Scranton International Airport (“Airport”), to vote on his own application for employment with the Partnership as the Airport Director, where: (1) the Partnership Board is a joint board that consists of six Members, three of whom are from Lackawanna County and three of whom are from Luzerne County; (2) under the Partnership’s operating rules, a matter before the Partnership Board must be voted on separately by each County’s three-Member delegation; (3) a majority vote of approval of each County’s delegation (a “concurrent majority”) is required in order for the Partnership Board to take affirmative action on a matter; (4) the individual is one of the three Members of the Lackawanna County delegation; and (5) the Partnership Board would not be able to take conclusive action on the individual’s application if the other two Members of the Lackawanna County delegation would reach an impasse (i.e., a 1-1 vote) on the individual’s application for employment. Brief Answer: NO. For purposes of the Ethics Act, the governing body of the Partnership is the Partnership Board as a whole, and the County delegations do not constitute separate three-member governing bodies subsumed within the Partnership Board. Therefore, the 1 65 Pa.C.S. § 1103(j). LaBelle, 26-532 May 26, 2026 Page 2 voting conflict exception of Section 1103(j) that applies to three-member governing bodies of political subdivisions would not apply to permit the individual to vote to break a tie vote of the other two Members of the Lackawanna County delegation on the individual’s application for employment. Facts: You have been authorized by Chris Chermak (“Mr. Chermak”), who is a County Commissioner for Lackawanna County, to request an advisory from the Commission on his behalf. You have submitted facts that may be fairly summarized as follows. Lackawanna County and Luzerne County jointly operate the Wilke-Barre/Scranton International Airport (“Airport”) through a partnership entity named “AVP Bi-County Partnership” (“Partnership”). The Board of the Partnership is a joint board that consists of six Members, three of whom are from Lackawanna County and three of whom are from Luzerne County. Under the Partnership’s operating rules, a matter before the Partnership Board must be voted on separately by each County’s three-Member delegation, and a majority vote of approval of each County’s delegation (a “concurrent majority”) is required in order for the Partnership Board to take affirmative action on a matter. Mr. Chermak serves on the Partnership Board as one of the three Members of the Partnership Board’s Lackawanna County delegation. The Partnership Board is in the process of hiring a new Airport Director. Mr. Chermak has submitted an application to the Partnership Board for employment as the Airport Director. Mr. Chermak is aware that as a result of the submission of his application, he would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to matters pertaining to the hiring of an Airport Director and typically would be required to abstain from all discussions and votes related to such matters. If Mr. Chermak would abstain from voting on his own application for employment and the other two Members of the Partnership Board’s Lackawanna County delegation would reach an impasse (i.e., a 1-1 vote) on his application, the Partnership Board would not be able to take conclusive application on Mr. Chermak’s application. You seek guidance as to whether the voting conflict exception of Section 1103(j) of the Ethics Act that applies to three-member governing bodies of political subdivisions would permit Mr. Chermak to vote to break a tie vote of the other two Members of the Partnership Board’s Lackawanna County delegation on Mr. Chermak’s application for employment as the Airport Director. 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. LaBelle, 26-532 May 26, 2026 Page 3 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), 1103(j). The following terms related to Sections 1103(a) and 1103(j) 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 LaBelle, 26-532 May 26, 2026 Page 4 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. “Political subdivision.” Any county, city, borough, incorporated town, township, school district, vocational school, county institution district, and any authority, entity or body organized by the aforementioned. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Act’s definition of the term “conflict” or “conflict of interest,” 65 Pa.C.S. § 1102, a public official/public employeeis 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 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. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. Asa Lackawanna County Commissioner and as a Member of the Partnership Board, Mr. Chermak is a public official subject to the provisions of the Ethics Act. Mr. Chermak generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters before the Partnership Board that would financially impact him, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Given that Mr. Chermak has submitted an application to the Partnership Board for employment as the Airport Director, he specifically would have a conflict of interest with regard to participating in matters before the Partnership Board pertaining to the hiring of an Airport Director, including voting on his own application. Subject to two narrowly construed voting conflict exceptions of Section 1103(j) of the Ethics Act, Mr. Chermak would be required to abstain LaBelle,26-532 May 26, 2026 Page 5 fully from participation in each instance of a conflict of interest. One ofthe two voting conflict exceptions of Section 1103(j) is not applicable in this matter because it becomes operative only where more than one member of a body has a conflict of interest. See, e.g., Pavlovic, Opinion 02- 005. The voting conflict exception of Section 1103(j) that allows for breaking a tie vote despite a conflict of interest is available exclusively to a member of a three-member governing body of a political subdivision who first abstainsand discloseshis conflict as required by Section 1103(j). Id. The Partnership is a “political subdivision”as that term is defined by the Ethics Act. For purposes of the Ethics Act, the governing body of the Partnership is the Partnership Board as a whole,and the County delegations do not constitute separate three-member governing bodies subsumed within the Partnership Board. Therefore, the voting conflict exception of Section 1103(j) that applies to three-member governing bodies of political subdivisions would not apply to permit Mr. Chermak to vote to break a tie vote of the other two Members of the Lackawanna County delegation on hisapplication for employmentwith the Partnership as the Airport Director. Lastly, 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 consideredin that they donot involve an interpretation of the Ethics Act. Specifically not addressed herein is any applicability of the common law rule of necessity. 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 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