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HomeMy WebLinkAbout26-545 Albert 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 14, 2026 To the Requester: Michael Albert 26-545 Dear Mr. Albert: This responds to your letter dated July 9, 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 township supervisor would have a conflict of interest pursuant to 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, deliberations, or votes of the township board of supervisors pertaining to a conditional use application that seeks approval for the construction of a data center on property in which the township supervisor’s father-in-law has a small ownership interest. Brief Answer: NO. Pursuant to Section 1103(a) of the Ethics Act, the township supervisor would have a conflict of interest in matters 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. Because the township supervisor’s father-in-law is not a member of the township supervisor’s “immediate family” as that term is defined by the Ethics Act, the fact that the township supervisor’s father-in-law has a small ownership interest in the property would not be a basis for the township supervisor to have a conflict of interest under Section 1103(a) with regard to participating in discussions, deliberations, or votes of the township board of supervisors pertaining to theconditional use application that seeks approval for the construction of a data center on the property. Facts: Albert, 26-545 July 14, 2026 Page 2 Yourequest an advisory from the Commissionbased upon the following submitted facts. You are a Supervisor for Smithfield Township (“Township”), which is located in Monroe County, Pennsylvania. The Township Board of Supervisors serves in a quasi-judicial capacity in hearings involving conditional use applications and other land use matters. A conditional use application filed with the Township seeks approval for the construction of a large-scale data center within the proposed Smithfield Gateway development (“Smithfield Gateway”) in the Township. In 2016 your father-in-law sold the property that is the subject of the conditional use application to the developer (the “Developer”) of Smithfield Gateway. When the Developer was unable to complete the final payment owed under the purchase agreement for the property, your father-in-law accepted a small ownership interest in the Smithfield Gateway property in lieu of pursuing collection of the final payment. Proceedings related to the conditional use application for the Smithfield Gateway property are set to commence on September 9, 2026. Neither you, your wife, nor your children have any financial interest in the Smithfield Gateway property. It is your understanding that your father-in- law’s ownership interest in the Smithfield Gateway property does not provide him with management authority or decision-making control over matters. The question that is presented by your advisory request is whether your father-in-law’s ownership interest in the Smithfield Gateway property would be a basis for you to have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in discussions, deliberations, or votes of the Township Board of Supervisors Board pertaining to the conditional use application that seeks approval for the construction of a data center on the Smithfield Gateway property. 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. Albert, 26-545 July 14, 2026 Page 3 (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 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. Albert, 26-545 July 14, 2026 Page 4 “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. 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 aTownship Supervisor, 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 Township Board of Supervisors 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. Your father-in-law is not a member of your “immediate family” as that term is defined in the Ethics Act. Because your father-in-law is not a member of your immediate family, the fact that your father-in-law has a small ownership in the Smithfield Gateway property would not be a basis for you to have a conflict of interest under Section 1103(a) in matters before the Township Board of Supervisors pertaining to the Smithfield Gateway property. As the submitted facts do not indicate that there would be a basis for a conflict of interest such as a private pecuniary (financial) benefit to you, a member of your immediate family, or a business with which you or a member of your immediate family is associated, you are advised that you would not have a conflict of interest under Section 1103(a) with regard to participating in discussions, deliberations, or votes of the Township Board of Supervisors pertaining to the conditional use application that seeks approval for the construction of a data center on the Smithfield Gateway property. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Albert,26-545 July 14, 2026 Page 5 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