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HomeMy WebLinkAbout26-556 Ostrowski 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 25, 2026 To the Requester: Phillip J. Ostrowski 26-556 Dear Mr. Ostrowski: This responds to your email received August 14, 2026, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the issue presented below: Issue: Whether, pursuant to Section 1103(a) of thePublic Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), an individual serving as a member of a borough council, who is the president of one of four volunteer fire companies that provide emergency services to the borough, would have a conflict of interest with regard to voting on matters that would affect all four volunteer fire companies, such as a borough fire budget providing for expenditures which would benefit all four volunteer fire companies collectively rather than individually. Brief Answer: The volunteer fire company of which the individual is the president is a business with which the individual is associated in his capacity as an officer. Accordingly, the individual generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters before the borough council that would financially impact him or that volunteer fire company. However, the individual would not have a conflict of interest with regard to voting on a borough fire budget if it would financially impact all four volunteer fire companies equally and not the volunteer fire company of which he is the president uniquely, as the class/subclass exclusion to the Ethics Act’s definition of “conflict” or 1 “conflict of interest” would be applicable in such circumstances. 1 Pursuant to the definition of “conflict” or “conflict of interest” set forth in Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102, action that 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, does not constitute a conflict of interest. Ostrowski, 26-556 August 25, 2026 Page 2 Facts: You request anadvisory from the Commission based upon submitted facts that may be fairly summarized as follows. You are a newly elected Member of Council for the Borough of Munhall (“Borough”). Through an ordinance, the Borough contracts with four independent volunteer fire companies (“the Four Volunteer Fire Companies”) for the provision of emergency services for the Borough. Each of the Four Volunteer Fire Companies is a 501(c)(3) organization. The Munhall Bureau of Fire consists of a Borough Fire Chief and two Deputy Chiefs. Although the Munhall Bureau of Fire operates independently from the Four Volunteer Fire Companies, its leadership is selected from members of the Four Volunteer Fire Companies and serves the interests of the Borough’s fire service as a whole. Every four years, the Four Volunteer Fire Companies nominate candidates and vote to select a Borough Fire Chief who oversees emergency incidents and budget preparation for the Borough. The Borough Fire Chief appoints two Deputy Chiefs to assist with the Munhall Bureau of Fire’s day-to-day responsibilities. The Borough does not provide a separate annual operating contribution to each of the Four Volunteer Fire Companies. Instead, the Borough Fire Chief submits a fire budget to the Borough Manager and Borough Council. This budget provides for expenses such as station utilities, hydrant rental, building and vehicle repairs, workers’ compensation coverage, equipment insurance, equipment purchases, and training. These expenditures benefit the Four Volunteer Fire Companies collectively. Each of the Four Volunteer Fire Companies remains responsible for its own operating expenses. As a result, the Four Volunteer Fire Companies conduct fundraisers to help cover the costs of equipment, uniforms, and other necessities. Munhall Volunteer Fire Company No. 1 is one of the Four Volunteer Fire Companies. You have served as a firefighter with Munhall Volunteer Fire Company No. 1 since 1994, and you currently serve as President of Munhall Volunteer Fire Company No. 1. For the past three years, You have also served as a Deputy Chief of the Munhall Bureau of Fire, which involves assisting with the oversight of emergency incidents and the preparation of the Borough fire budget. You might at some point in time be selected by the Four Volunteer Fire Companies to serve as the Borough Fire Chief. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you with regard to performing the duties of your position as a Borough Council Member at such times as you would be serving as a Deputy Chief or the Borough Fire Chief. In particular, you ask whether you would be permitted to participate in matters before Borough Council that would affect the Four Volunteer Fire Companies collectively, such as the Borough fire budget. 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. Ostrowski, 26-556 August 25, 2026 Page 3 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 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 Ostrowski, 26-556 August 25, 2026 Page 4 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. “Business.” Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self-employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. “Business with which he is associated.” Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 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 definition of the term “business” as set forth in the Ethics Act includes a non- profit organization. Rendell v. State Ethics Commission, 603 Pa. 292, 983 A.2d 708 (2009). 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. A conflict of interest would not exist to the extent the "de minimis exclusion" or the “class/subclass” exclusion set forth within the Ethics Act’s definition of the term "conflict" or "conflict of interest" would be applicable. The de minimis exclusion precludes a finding of conflict of interest as to an action having a de minimis (insignificant) economic impact.Thus, when a matter that would otherwise constitute Ostrowski, 26-556 August 25, 2026 Page 5 a conflict of interest under the Ethics Act would have an insignificant economic impact, a conflict would not exist and Section 1103(a) of the Ethics Act would not be implicated.See, Kolb, Order 1322; Schweinsburg, Order 900. In order for the class/subclass exclusion to apply, two criteria must be met: (1) the affected public official/public employee, immediate family member, or business with which the public official/public employee or immediate family member is associated must be a member of a class consisting of the general public or a true subclass consisting of more than one member; and (2) the public official/public employee, immediate family member, or business with which the public official/public employee or immediate family member is associated must be affected "to the same degree" (in no way differently) than the other members of the class/subclass. 65 Pa.C.S. § 1102; see, Kablack, Opinion 02-003; Rubenstein, Opinion 01-007. The first criterion of the exclusion is satisfied where the members of the proposed subclass are similarly situated as the result of relevant shared characteristics. The second criterion of the exclusion is satisfied where the individual/business in question and the other members of the class/subclass are reasonably affected to the same degree by the proposed action. Kablack, supra. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As a Borough Council Member, you are a public official subject to the provisions of the Ethics Act.Munhall Volunteer Fire Company No. 1 is a “business” as that term is defined by the Ethics Act, and it is a business with which you are associated in your capacity as an officer (i.e., President). You generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters before Borough Council that would financially impact you or Munhall Volunteer Fire Company No. 1. You specifically would have a conflict of interest with regard to participating in actions of Borough Council that would financially impact Munhall Volunteer Fire Company No. 1 uniquely unless the financial impact would be insignificant, in which case the de minimis exclusion to a conflict of interest would be applicable and your participation would be permissible. Because Munhall Volunteer Fire Company No. 1 is a member of a subclass consisting of the Four Volunteer Fire Companies, you would not have a conflict of interest with regard to participating in matters before Borough Council that would financially impact all of the Four Volunteer Fire Companies equally, as the class/subclass exclusion to a conflict of interest would be applicablein such circumstances. Accordingly, you would not have a conflict of interest with regard to voting on a Borough fire budget if the Borough fire budget would affect all of the Four Volunteer Fire Companies equally and not Munhall Volunteer Fire Company No. 1 uniquely, as the class/subclass exclusion to a conflict of interest would be applicable. As noted above, 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. Ostrowski,26-556 August 25, 2026 Page 6 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