Loading...
HomeMy WebLinkAbout26-553 Bednarek 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 August 17,2026 To the Requester: Nicole F. Bednarek, Esquire 26-553 Dear Ms. Bednarek: This responds to your letter dated July 28, 2026, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to theissue presented below: Issue: Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon the school directors for a school district with regard to accepting hospitality from vendors that either currently conduct business with the school district or might seek to do business with the school district in the future. Brief Answer: The Ethics Act would not prohibit the school directors from accepting hospitality from vendors that either currently conduct business with the school district or might seek to do business with the school district in the future subject to the condition that there would be no understanding that the school directors’ official action or judgment would be influenced thereby in contravention of Sections 1103(b)-(c) of the Ethics Act. Facts: Youhave been authorized by all of the School Directors for the Hazleton Area School District (“School District”) to request an advisory from the Commission on their behalf. You have submitted facts that may be fairly summarized as follows. Vendors that either currently conduct business with the School District or might seek to do business with the School District in the future may extend invitations to the School Directors to Bednarek, 26-553 August 17, 2026 Page 2 attend events such as educational presentations, networking opportunities, product demonstrations, conferences, or similar business-related functions that may include meals or other vendor- sponsored hospitality. Although no contracts would be negotiated or awarded during these events, the attendees could discuss trends, products, services, or other matters relevant to the School District’s operations. Based upon the above submitted facts, you pose the following questions: (1) Whether the Ethics Act would permit the School Directors to accept meals or other vendor-sponsored hospitality at business-related functions or events; (2) Whether the fact that the vendor sponsoring the hospitality would be a current contractor to the School District or alternatively a potential bidder for future School District business would affect the propriety of accepting hospitality from the vendor; (3) Whether the acceptance of vendor-sponsored hospitality should be evaluated under the conflict of interest provisions of the Ethics Act even if all applicable reporting requirements of the Ethics Act would be satisfied; (4) Whether there would be circumstances under which the acceptance of such hospitality by a School Director could constitute an impermissible private pecuniary benefit or otherwise violate the Ethics Act; and (5) Does the Commission recommend any limitations or best practices that public school districts should adopt regarding attendance at vendor-sponsored hospitality events. 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 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. It is further initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, an advisory may be issued to a requester who has the legal authority or “standing” to request an advisory as to a particular person’s duties under the Ethics Act. The Commission does not have the statutory authority to make recommendations as to best practices or policies that governmental bodies may or should adopt to address the conduct of public officials/public employees in general. Therefore, this advisory is necessarily limited to addressing the questions posed from the perspective of the specific conduct of the School District School Directors. Sections 1103(a)and 1103(j) of the Ethics Act provide: Bednarek, 26-553 August 17, 2026 Page 3 § 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 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 Bednarek, 26-553 August 17, 2026 Page 4 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. 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” or 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. Per the Pennsylvania Supreme Court’s decision in Kistler v. State Ethics Commission, 610 Pa. 516, 22 A.3d 223 (2011), in order to violate Section 1103(a) of the Ethics Act, a public official/public employee: … must act in such a way as to put his \[office/public position\] to the purpose of obtaining for himself a private pecuniary benefit. Such directed action implies awareness on the part of the \[public official/public employee\] of the potential pecuniary benefit as well as the motivation to obtain that benefit for himself. Kistler, supra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics Act, a public official/public employee “must be consciously aware of a private pecuniary benefit for himself, his family, or his business, and then must take action in the form of one or more specific steps to attain that benefit.” Id., 610 Pa. at 528, 22 A.3d at 231. Per Commission precedent, the Ethics Act does not prohibit a public official/public employee from accepting “no-strings-attached” gifts, transportation, lodging or hospitality. Cf., Cooper, Opinion 92-009. Sections 1103(b) and 1103(c) of the Ethics Act, 65 Pa.C.S. §§ 1103(b), 1103(c), provide in part that no person shall offer or give to a public official/public employee anything of monetary value and no public official/public employee shall solicit or accept anything of monetary value Bednarek, 26-553 August 17, 2026 Page 5 based upon the understanding that the vote, official action, or judgment of the public official/public employee would be influenced thereby. Sections 1104(a) and 1105(b) of the Ethics Act, 65 Pa.C.S. §§ 1104(a), 1105(b), provide for the filing of annual Statements of Financial Interests by public officials/public employees. Subject to certain statutory exceptions, Section 1105(b)(7) of the Ethics Act, 65 Pa.C.S. § 1105(b)(7), requires the filer to disclose on the Statement of Financial Interests the name and address of the source and the amount of any payment for or reimbursement of actual expenses for transportation and lodging or hospitality received in connection with public office or employment where such actual expenses exceed $650 in an aggregate amount per year. For disclosure purposes, the term “hospitality” is defined to include meals, beverages, recreation, and entertainment. See, Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102/Section 13A03 of Pennsylvania’s lobbying disclosure law, 65 Pa.C.S. § 13A03. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. The School Directors for the School District are public officials subject to the provisions of the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, the School District School Directors generally would be prohibited from using the authority of their public position or confidential information received by holding their public position for the private pecuniary (financial) benefit of themselves, their immediate family members, or businesses with which they or their immediate family members are associated. Because Section 1103(a) of the Ethics Act does not prohibit public officials/public employees from accepting vendor-sponsored hospitality, the acceptance of such hospitality by the School District School Directors would not constitute an impermissible private pecuniary benefit. The Ethics Act would not prohibit the School District School Directors from accepting vendor- sponsored hospitality at business-related functions or events from vendors that either currently do business with the School District or might be potential bidders for future School District business subject to the condition that there would be no understanding that the School Directors’ official action or judgment would be influenced thereby in contravention of Sections 1103(b)-(c) of the Ethics Act. Cf., VanderKam, Advice 24-565; Confidential Advice, 23-551; Ewald, Advice 12- 524. A School Director’s receipt of vendor-sponsored hospitality from a vendor that either currently does business with the School District or might be a potential bidder for future School District business in and of itself would not be a basis for the School Director to have a conflict of interest under Section 1103(a) of the Ethics Act in matters before the School District School Board pertaining to that vendor. Accordingly, in such a case, the School Director would not have a conflict of interest with regard to participating in matters before the School District School Board involving that vendor unless: (1) the School Director would be consciously aware of a private pecuniary (financial) benefit for the School Director, an immediate family member of the School Director, or a business with which the School Director or an immediate family member is associated; (2) the School Director’s action(s) would constitute one or more specific steps to attain Bednarek,26-553 August 17, 2026 Page 6 that benefit; and (3) neither of the statutory exclusions to the definition of “conflict” or “conflict of interest” as set forth in the Ethics Act would be applicable. As noted above, in each instance of a conflict of interest, the School Director would be required to abstain from participation. To the extent the reporting threshold of Section 1105(b)(7) of the Ethics Act would be met, a School Directorwould be required to satisfy the disclosure requirements of Section 1105(b)(7) of the Ethics Act as to hospitalityreceived at vendor-sponsored events. 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. 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