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HomeMy WebLinkAbout26-536 Gayman 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 June 10, 2026 To the Requester: Douglas G. Gayman 26-536 Dear Mr. Gayman: This responds to your letter dated May 25, 2026, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to theissue 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 Member of the Bedford County Agricultural Land Preservation Board (“Board”), who in his private capacity owns farmland, from selling an agricultural conservation easement covering his property to Bedford County through the Bedford County Agricultural Conservation Easement Purchase Program (“Program”). Brief Answer:NO. Because Section 1103(a) of the Ethics Act imposes restrictions upon the individual in his public capacity as a Member of the Board rather than upon him in his private capacity, Section 1103(a) would not prohibit the individual, as a farmland owner, from selling an agricultural conservation easement covering his property to Bedford County through the Program. However, in his capacity as a Member of the Board, the individual 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 Board pertaining to the Program’s purchase of an agricultural conservation easement covering the individual’s property. Facts: Gayman, 26-536 June 10, 2026 Page 2 You request an advisory from the Commission based upon the following submitted facts. You are a Member of the Board, and you are currently the acting Chairperson of the Board. You have submitted a copy of the Bylaws of the Board, which document is incorporated herein by reference. It is administratively noted that pursuant to the Agricultural Area Security Law, 3 P.S. § 901 et seq., the Board is responsible for administering the Program, which purchases agricultural conservation easements in the name of Bedford County (“County”). The County and the Commonwealth provide funding for the Program. A landowner who desires to sell an agricultural conservation easement to the County must submit an agricultural conservation easement application (“Easement Application”) to the Board. Easement Applications are reviewed and scored by the Bedford County Director of Planning, Stephanie Clevenstine, and her staff as part of the application process. The Board received three Easement Applications prior to a March 3, 2026, deadline, including an Easement Application that you submitted for farmland that you own. You have submitted a copy of the minutes of the Board’s April 13, 2026, meeting, which reflect that you abstained from voting on a motion that approved your Easement Application to proceed to the next stage of the process. The Board is now at the stage of the process that involves the appraisal of your property to determine the valuation of an agricultural conservation easement covering your property. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would permit you to sell an agricultural conservation easement covering your property to the County through the Program. It is noted that the Board’s Bylaws provide that before selling an agricultural conservation easement, a Board Member shall obtain an opinion from the Commission stating that such participation is in fact permitted under the Ethics Act. 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 1103(j) of the Ethics Act provide: § 1103. Restricted activities Gayman, 26-536 June 10, 2026 Page 3 (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 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. Gayman, 26-536 June 10, 2026 Page 4 “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,” 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 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. Section 1103(f) of the Ethics Act, pertaining to contracting, provides as follows: § 1103. Restricted activities (f) Contract.-No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 Pa.C.S. § 1103(f). Gayman, 26-536 June 10, 2026 Page 5 The term “contract” is defined in the Ethics Act as follows: “Contract.” An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal or real property. The term shall not mean an agreement or arrangement between the State or political subdivision as one party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. 65 Pa.C.S. § 1101. Section 1103(f) does not operate to make contracting with the governmental body permissible where it is otherwise prohibited. Rather, where a public official/public employee, his spouse or child, or a business with which he, his spouse or child is associated, is otherwise appropriately contracting with the governmental body, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500 or more, Section 1103(f) requires that an “open and public process” be observed as to the contract with the governmental body. Section 1103(f) of the Ethics Act also provides that the public official/public employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As a Member of the Board, you are a public official subject to the provisions of the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, you generally would have a conflict of interest in matters before the Board that would financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. Because Section 1103(a) of the Ethics Act imposes restrictions upon you in your capacity as a Member of the Board rather than upon you in your private capacity, Section 1103(a) would not prohibit you, as a farmland owner, from selling an agricultural conservation easement covering your property to the County through the Program. However, you 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 Board pertaining to your Easement Application. 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. Gayman, 26-536 June 10,2026 Page 6 The restrictions and requirements of Section 1103(f) of the Ethics Act would have to be observed as to any contract between you and the Board that would be valued at $500 or more. 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 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