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HomeMy WebLinkAbout26-543 Brenneman 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 July 13, 2026 To the Requester: Keith O. Brenneman, Esquire 26-543 Dear Mr. Brenneman: This responds to your letter dated June 29, 2026, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the issue presented below: Issue: Whether a supervisor for a township, whose spouse is a county commissioner for the county in which the township is located, 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 participating in discussions, votes, or other actions of the township board of supervisorspertaining to a zoning text amendment to the township zoning ordinance that would allow the development of a solar array on county-owned property in 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 participating in discussions, votes, or other actions of the township board of supervisors pertaining to the zoning text amendment because the submitted facts do not indicate that the development of a solar array on the county-owned property would financially benefit the township supervisor, his spouse or another member of his immediate family, or a business with which he or a member of his immediate family is associated. Facts: You have been authorized by Philip Neiderer (“Mr. Neiderer”) to request an advisory from the Commission on his behalf. You have submitted facts that may be fairly summarized as follows. Brenneman, 26-543 July 13, 2026 Page 2 Mr. Neiderer is a Supervisor for Middlesex Township (“Township”),which is located in Cumberland County (“County”), Pennsylvania. Mr. Neiderer is Vice-Chairman of the Township Board of Supervisors. Mr. Neiderer’s spouse is a County Commissioner for the County. Mr. Neiderer’s spouse is Chairman of the County Board of Commissioners. The County proposes to install a solar array on property that the County owns in the Township in order to generate electricity to be used by County facilities. The solar array would produce 98% of the electricity used by County facilities located within a two mile radius of the solar array and could save the County approximately $19 million in electrical costs over a 30-year period. The solar array would be owned by the developer of the solar array project. A zoning text amendment to the Township Zoning Ordinance would be needed in order to allow the use of a solar array on the County-owned property. As such, the County may request a zoning text amendment to allow the installation of a solar array on its property. The Township Board of Supervisors is the body empowered to decide whether a request for a zoning text amendment to the Township Zoning Ordinance should be granted. You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon Mr. Neiderer with regard to participating in discussions, votes, or other actions of the Township Board of Supervisors pertaining to a request by the County for a zoning text amendment to the Township Zoning Ordinance that would allow the use of a solar array on the County-owned property in the Township. 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 (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 Brenneman, 26-543 July 13, 2026 Page 3 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. “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. Brenneman, 26-543 July 13, 2026 Page 4 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 employeehimself, 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. As a Township Supervisor, Mr. Neiderer is a public official subject to the provisions of the Ethics Act. Mr. Neiderer’s spouse is a member of his “immediate family” as that term is defined in the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, Mr. Neiderer generally would have a conflict of interest in matters before the Township Board of Supervisors that would financially impact him, his spouse or another member of his immediate family, or a business with which he or a member of hisimmediate family is associated. Mr. Neiderer would not 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 Township Board of Supervisors pertaining to a zoning text amendment to the Township Zoning Ordinance that would allow the use of a solar array on the County-owned property in the Township because the submitted facts do not indicate that the development of a solar array on the property would financially benefit Mr. Neiderer, his spouse or another member of his immediate family, or a business with which he or a member of his immediate family is associated. 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. Brenneman, 26-543 July 13, 2026 Page 5 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