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No “Unintentional” Violation of Ethics Act Possible

Interpreting the “conflict of interest” provisions of Pennsylvania’s Ethics Act, the Supreme Court has ruled that “to violate the conflict of interest provision … a public official 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.”  Kistler v. State Ethics Comm’n,  __Pa. __, ___A. 2d ___ (2011) (59 MAP 2009, decided June 22, 2011).

Kistler, an intermediate unit (“IU”) board member and chair of the IU’s building committee from 1998 until March 18, 2002, was also president of a pole building construction company.  In February 2002, the IU’s architect informed Kistler that the garage the IU was planning might involve a pole building design and that if so he would call on Kistler to provide pricing information.  Kistler promptly resigned from the IU building committee, and on the advice of the IU solicitor abstained from IU votes related to the project.  Kistler’s pole building company signed a contract with the architect to construct the garage in July 2002.  While planning garage construction, the IU embarked on a separate school building project, voting in June 2002 to retain the same architect, with Kistler participating in the vote.  When Kistler learned in 2003 that the architect again planned a pole building construction for the school building project, he began to abstain from IU votes related to the school project.  Kistler’s company was thereafter retained by the architect to build the school.

Following an investigation and hearings, the Ethics Commission decided Kistler had “unintentionally” violated the Ethics Act by voting to retain the architect for the school building project while simultaneously seeking a subcontract from the same architect to construct the garage building.  His violation was unintentional, the Commission held, because Kistler had based all of his abstention and participation decisions on the advice of the IU’s solicitor.

The Commonwealth Court reversed the Ethics Commission’s decision, and the Supreme Court accepted review and affirmed the Commonwealth Court in a separate opinion.  In addition to holding that a public official must be “consciously aware” of the private pecuniary benefit (and thus the potential conflict of interest) and take specific steps to secure the benefit, the Court also held that Kistler did not in fact “use” his office under the facts presented to secure the private benefit.

Concurring, Justice Saylor, joined by Chief Justice Castille, rejected any implication by the majority that it is not possible for a public official to “unintentionally use” his office to benefit “himself or another person within the statute’s prohibition,” but concurred in the majority;s holding because “proof of intent is a necessary prerequisite” to a finding of a violation of the conflict of interest provision, and that there was no proof that Kistler intended to use his office to secure a benefit.

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