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HomeMy WebLinkAbout26-566 Cichy 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 October 13, 2026 To the Requester: Matthew D. Cichy, P.E. 26-566 Dear Mr. Cichy: This responds to your email received October 5, 2026, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”) under the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., seeking guidance as to the issues presented below: Issues: (1) Whether an individual serving as a Member of the Board of the Swatara Township Authority (“Authority”), who in his private capacity is employed with a consulting engineering firm, HRG, would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in discussions or votes of the Authority Board on the selection of an engineering firm to serve as the Authority’s Retained Engineer, if HRG would submit a proposal for the Retained Engineer position to the Authority. Brief Answer: YES. HRG is a business with which the individual is associated in his capacity as an employee. Therefore, if HRG would submit a proposal for the Retained Engineer position to the Authority, the individual would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in discussions or votes of the Authority Board on the selection of an engineering firm to serve as the Retained Engineer, and he would be required to abstain from participating in those discussions or votes. (2) Whether the Ethics Act would impose prohibitions or restrictions upon the individual with regard to working on Authority projects in his capacity as an employee of HRG. Cichy, 26-566 October 13, 2026 Page 2 Brief Answer:The Ethics Act would not prohibit the individual from working on Authority projectsin his capacity as an employee of HRG. However, the individual generally would 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 Authority Board pertaining to his/HRG’s work on Authority projects. Facts: Yourequest an advisory from the Commission based on submitted facts that may be summarized as follows. You are a Member of the Authority Board. The Authority is a municipal sewer authority located in Dauphin County, Pennsylvania. In your private capacity, you are employed with a consulting engineering firm, HRG, as a Senior Quality Lead. As part of your role with HRG, you oversee and provide quality control on complex sanitary sewer projects. On September 14, 2026, the Authority Board voted to initiate a Request for Proposal (“RFP”) for a Retained Engineer. You abstained from the discussion and vote on the matter because of the possibility that HRG would consider responding to the RFP. You have since been informed that HRG has been requested to submit a proposal in response to the RFP. You seek guidance as to whether it would be appropriate for HRG to submit a proposal for the Retained Engineer position to the Authority provided that you would abstain from any discussions or votes of the Authority Board on the selection of an engineering firm for the Retained Engineer position. You state that if HRG would be selected by the Authority Board for the Retained Engineer position, it would be your plan to abstain from discussions or votes on any contracts that the Authority would enter into with HRG. You further seek guidance as to whether you would be permitted to ask HRG, as the Retained Engineer, questions regarding the status of projects provided that the questions would not be related to a contract. You additionally seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you with regard to working on Authority projects as an employee of HRG while you are serving as a Member of the Authority Board. In particular, you question whether there would be some form of disclosure that you would need to provide in order to work on Authority projects. 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. Cichy, 26-566 October 13, 2026 Page 3 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 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 Cichy, 26-566 October 13, 2026 Page 4 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 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/employment or confidential information received by holding such a public position for the advancement of his own private pecuniary (financial) benefit or that of a business with which he is associated. Pancoe, Opinion 89-011.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. Section 1103(f) of the Ethics Act, pertaining to contracting, provides as follows: § 1103. Restricted activities (f) Contract.-No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or Cichy, 26-566 October 13, 2026 Page 5 public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 Pa.C.S. § 1103(f). The term “contract” is defined in the Ethics Act as follows: “Contract.” An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal or real property. The term shall not mean an agreement or arrangement between the State or political subdivision as one party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. 65 Pa.C.S. § 1101. Section 1103(f) does not operate to make contracting with the governmental body permissible where it is otherwise prohibited. Rather, where a public official/public employee, his spouse or child, or a business with which he, his spouse or child is associated, is otherwise appropriately contracting with the governmental body, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more, Section 1103(f) requires that an “open and public process” be observed as to the contract with the governmental body. Section 1103(f) of the Ethics Act also provides that the public official/public employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. Cichy, 26-566 October 13, 2026 Page 6 As a Member of the Authority Board, you are a publicofficialsubject to the provisions of the Ethics Act. HRG is a business with which you are associated in your capacity as an employee of HRG. Pursuant to Section 1103(a) of the Ethics Act, you generally would have a conflict of interest as an Authority Board Member in matters that would financially impact you or HRG. Your service as an Authority Board Member would not prohibit HRG from submitting a proposal for the Retained Engineer position to the Authority. If HRG would submit a proposal for the Retained Engineer position to the Authority, pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest with regard to participating in discussions or votes of the Authority Board on the selection of an engineering firm to serve as the Retained Engineer. You further would have a conflict of interest with regard to participating in any discussions or votes of the Authority Board on any contracts between the Authority and HRG for the Retained Engineer position. If HRG would become the Retained Engineer, you generally would have a conflict of interest in matters before the Authority Board pertaining to HRG’s work for the Authority. Section 1103(a) would not prohibit you from making general informational inquiries as to the status of Authority projects subject to the condition that such inquiries would not involve matters that would financially impact you or HRG. Additionally, because Section 1103(a) of the Ethics Act imposes restrictions upon you in your capacity as a public official rather than upon you in your private capacity, Section 1103(a) would not prohibit you from working on Authority projects as an employee of HRG. However, you would have a conflict of interest under Section 1103(a) with regard to participating in discussions, votes, or other actions of the Authority Board on any contract between the Authority and HRG for project work or any other matters pertaining to your/HRG’s work on Authority projects. In each instance of a conflict of interest, you would be required to abstain from participation, which would includevoting 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. The restrictions and requirements of Section 1103(f) of the Ethics Act would have to be observed as to any contract between the Authority and HRG for the Retained Engineer position or for the provision of other engineering services to the Authority. (See, Kistler v. State Ethics Commission, 610 Pa. 516, 22 A.3d 223 (2011), regarding the requirements for an “open and public process.”) 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. Cichy,26-566 October 13, 2026 Page 7 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