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HomeMy WebLinkAbout26-537 Kearney 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: Melissa A. Kearney 26-537 Dear Ms. Kearney: This responds to your letterdated May 28, 2026, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to theissue presented below: Issue: Whethera township supervisor would have a conflict of interest under Section 1103(a) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), with regard to voting on a monthly bill list that would include a monthly payment of $100 to her daughter for cleaning the township police station as an independent contractorto the township. Brief Answer:NO.The township supervisor would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting on a monthly bill list that would include the monthly payment of $100 to her daughter for the cleaning servicesbecausethe approval of pre-fixed, routine, and uncontested bills/obligations does not in and of itself rise to the level of a violation of Section 1103(a) of the Ethics Act. Facts: You request an advisory from the Commission based upon the following submitted facts. You are a Member and Chairwomanof the Board of Supervisors of Covington Township (“Township”), located in Lackawanna County, Pennsylvania. The Township Board of Supervisors consists of five Members. You are also employed as the Township Secretary. Kearney,26-537 June 10, 2026 Page 2 Your daughter will be the cleaning person for the Township police station as an independent contractor to the Township. Your daughter’s rate of pay will be $100 per month. The previous cleaning person was paid the same amount for performing services as an independent contractor. You will abstain from the vote on the approval of your daughter to be the new cleaning person for the Township police station. You ask whether the Ethics Act would prohibit you from voting on a monthly bill list that would include the monthly payment of $100 to your daughter for cleaning the Township police station. 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) 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 membersof 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 Kearney,26-537 June 10, 2026 Page 3 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 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. “Immediate family.” A parent, spouse, child, brother or sister. 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. Kearney,26-537 June 10, 2026 Page 4 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. The Commission has determined that although a public official typically would have a conflict of interest in matters that would financially impact a business with which the public official is associated, a conflict of interest would not exist with regard to a public official voting to approve the payment of pre-fixed, routine, and uncontested bills from a business with which the public official is associated. Krushinski, Order 168; Yezzi, Order 825 at 58; Pizonka/Rieder/Rittenhouse, Opinion 09-007. In Shea, Order 921, the Commission applied its holding in Krushinskito find that an authority board member did not violate Section 1103(a) of the Ethics Act when he voted to approve the payment of routine/uncontested invoices for services that his spouse performed for the authority as an independent contractor. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As a Member and Chairwoman of the Township Board of Supervisors, you are a public official subject to the provisions of the Ethics Act. Your daughter is a member of your “immediate family” as that term is defined by the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, you generally would have a conflict of interest in matters before the Township Board of Supervisors that would financially impact you or your daughter. However, based upon Commission precedent regarding the approval of pre-fixed, routine, and uncontested bills, you would not have a conflict of interest with regard to voting on the approval of a monthly bill list that would include the $100 monthly payment to your daughter for cleaning the Township police station. 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. Kearney,26-537 June 10, 2026 Page 5 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