HomeMy WebLinkAbout26-563 Fraind
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
September 14, 2026
To the Requester:
Steven Fraind
26-563
Dear Mr. Fraind:
This responds to your emails received August 13, 2026, and August 26, 2026, by which
you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”),
seeking guidance as to the issue presented below:
Issue:
Whether, as a Supervisor for Salem Township, you 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 developer’s request for an amendment to the Salem
Township Zoning Map that would expand the Special Data Center Overlay zoning district
to include additional properties, where: (1) your mother resides on a property that she
transferred to you several years ago for estate planning purposes; (2) the property that was
transferred to you is not one of the additional properties that would be included in the
proposed expanded Special Data Center Overlay zoning district; and (3) if the proposed
amendment to the Salem Township Zoning Map would be approved, the property that was
transferred to you and other properties in the neighborhood may be purchased by the
developer.
Brief Answer: YES. Because there is an actual or reasonable expectation that the developer
may purchase the property that was transferred to you by your mother if the developer’s
request for an amendment to the Salem Township Zoning Map to expand the Special Data
Center Overlay zoning district would be approved, you would have a conflict of interest
under Section 1103(a) of the Ethics Act with regard to voting on the proposed amendment
to the Salem Township Zoning Map.
Facts:
Fraind, 26-563
September 14, 2026
Page 2
You request an advisory from the Commission based upon the following submitted facts.
You are a Supervisor for Salem Township (“Township”). A developer (“the Developer”)
has requested an amendment to the Salem Township Zoning Map (“Township Zoning Map”) that
would expand the Special Data Center Overlay zoning district to include additional properties.
Your mother resides on a property in the Township that she transferred to you several years
ago for estate planning purposes. Although the property that was transferred to you is not one of
the additional properties that would be included in the proposed expanded Special Data Center
Overlay zoning district, the property and other properties in the neighborhood may be purchased
by the Developer if its request for an amendment to the Township Zoning Map would be approved.
Based upon the above submitted facts, you ask whether you would have a conflict of
interest with regard to voting on the proposed amendment to the Township Zoning Map that would
expand the Special Data Center Overlay zoning district, and if so, whether you would be permitted
to take action to break a tie vote of the other two Township Supervisors on the proposed
amendment.
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
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September 14, 2026
Page 3
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, whereone
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
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September 14, 2026
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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, you are a public official subject to the provisions of the Ethics
Act. Your mother is a member of your “immediate family” as that term is defined in 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 such as your mother, or a business with which you or a member of your
immediate family is associated.
Based upon the submitted fact that there is an actual or reasonable expectation that the
Developer may purchase the property that was transferred to you by your mother if the Developer’s
request for an amendment to the Township Zoning Map to expand the Special Data Center Overlay
zoning district would be approved, you would have a conflict of interest under Section 1103(a) of
the Ethics Act with regard to voting on the proposed amendment to the Township Zoning Map.
You would be required to abstain from voting on the proposed amendment to the Township Zoning
Map unless one of the voting conflict exceptions of Section 1103(j) of the Ethics Act would be
applicable.
The exception for breaking a tie vote despite a conflict of interest is available exclusively
to members of three-member governing bodies of political subdivisions who first abstain and
disclose their conflicts as required by Section 1103(j) of the Ethics Act. See, e.g., Pavlovic,
Opinion 02-005. Because the Township Board of Supervisors is a three-Member governing body
of a political subdivision, Section 1103(j) would permit you to vote to break a tie if the other two
Township Supervisors would cast opposing votes on the Developer’s request for an amendment to
the Township Zoning Map, provided thatyou would initially: (1) abstain from the vote; and (2)
fully satisfy the disclosure requirements of Section 1103(j). However, in voting to break a tie vote,
you could not otherwise use the authority of office, such as by advocating your view, in the matter.
Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act.
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September 14, 2026
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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