Sivick, J., Aplt. v. State Ethics Commission ( 2020 )

[J-47-2020]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
JOHN P. SIVICK, : No. 62 MAP 2019
:
Appellant : Appeal from the Order of the
: Commonwealth Court at No. 252 CD
: 2018 dated January 3, 2019,
v. : Reconsideration denied on
: February 1, 2019, Affirming the
: Order by the Ethics Commission at
STATE ETHICS COMMISSION, : No. 16-001, Order No. 1731 dated
: February 1, 2018, exited February 8,
Appellee : 2018.
:
ARGUED: May 21, 2020
OPINION
JUSTICE WECHT DECIDED: October 1, 2020
John Sivick’s son wanted a job—or at least Sivick wanted his son to have one. An
old story, but notable in this case because Sivick père was a Lehman Township
Supervisor, and he hoped to arrange a position for his son in the Township’s employ.
After leaning on his fellow Supervisors,1 Sivick successfully emplaced his son on a
Township road crew. Following an ethics complaint and an investigation, the State Ethics
Commission (“Commission”) rewarded Sivick for his paternal determination by finding that
1 The Township Supervisors at the receiving end of Sivick’s efforts dispute the
balance of honey and vinegar in his approach.
Sivick violated the Public Official and Employee Ethics Act (“the Act”)2 in several respects.
As the lone sanction relative to this aspect of the ethics complaint, the Commission
imposed $30,000 in restitution. Sivick filed a petition for review of the Commission’s
adjudication and restitution order in the Commonwealth Court, challenging, inter alia, the
Commission’s adjudication of a conflict of interest3 violation as well as the legal authority
to impose restitution. The Commonwealth Court affirmed the Commission’s decision,4
and Sivick filed a petition for allowance of appeal in this Court. We granted review, and
we reverse on both points.
Lehman Township is a second-class township in Pike County with a three-member
Board of Supervisors. Sivick served as a Supervisor from 1994 to 2017, and as Chairman
of the Board from 2004 to 2017.5 During his tenure as Supervisor, Sivick also served as
the Roadmaster and Public Works Director, and was responsible for hiring all Township
employees. In 2009, Paul Menditto, a fellow Supervisor, updated the Township’s
employee handbook to include, among other provisions, a nepotism policy. The policy
2 Act of Oct. 15, 1998, P.L. 729, No. 93, codified as amended at 65 Pa.C.S. §§ 1101,
et seq.
3 See 65 Pa.C.S. §§ 1102, 1103(a).
4 See Sivick v. State Ethics Comm’n, 202 A.3d 814 (Pa. Cmwlth. 2019).
5 This factual summary is based upon the Commission’s account, much of which
relies upon stipulations of fact and the parties’ stipulations regarding what testimony
certain witnesses would offer if called to testify. See In re John P. Sivick, No. 16-001,
Final Adjudication of the State Ethics Commission, Order No. 1731, at 1-13 (mailed
2/8/2018) (“Commission Adjudication” or “Adjudication”). The Commission made
additional and presently uncontested findings of fact that we accept as true. See id. at 13-
16; cf. Dodaro v. Pennsylvania State Ethics Comm’n, 594 A.2d 652, 653 (Pa. 1991) (“The
scope of appellate review of the [Ethics] Commission’s order is limited to determining
whether constitutional rights have been violated, an error of law has been committed, or
whether necessary factual findings are not supported by substantial evidence.”).
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prohibited the hiring of an individual to a position in which they would supervise or be
supervised by an immediate family member.6 The Board, including Sivick, voted to
approve the revised handbook.
In 2012, Sivick told fellow Supervisors Menditto and Richard Vollmer, in one-on-
one conversations, that he wanted the Township to hire his son (“Son”). Both Supervisors
indicated that, for the Township to employ Son, the nepotism policy would have to be
removed from the employee handbook. Menditto prepared a revision to the handbook to
eliminate the policy, and, at a January 7, 2013 Board meeting, Menditto moved to approve
the amended handbook and Vollmer seconded the motion. Despite the Board’s general
practice of preparing an errata sheet reflecting handbook changes, Menditto did not
prepare such a sheet to reflect the removal of the policy. Sivick was present, but
abstained. With Menditto’s and Vollmer’s support, the motion carried.7
6 The policy provided, in relevant part:
No person shall be hired by Lehman Township in a full-time, permanent
position where the person shall supervise or be supervised by a member of
the person’s immediate family. This prohibition applies to supervision at
any level, whether immediate or through subordinate supervisors, and
applies to any situation where control or direction of the relative’s work
covered cause [sic] a conflict of interest. Immediate family is defined as
one’s spouse, parent, son or daughter, sister or brother, grandparent or
grandchild.
Stipulated Record at 6-7 ¶19.a.
7 The meeting minutes do not indicate that the handbook was amended to remove
the nepotism policy. Instead, under the header “Approve Employee Benefits and
Information,” the minutes provide: “Motion made by Mr. Menditto and second of
Mr. Vollmer to approve the employee benefits and information. Mr. Sivick abstained.” Id.
at 14, ¶42.c. Sivick later voted to approve these minutes.
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As Roadmaster, Sivick coordinated and scheduled training classes for Township
road crew employees. On March 20, 2013, Son was listed on a registration form
submitted on behalf of the Township enrolling six individuals in a traffic control flagger
training course mandated by the Pennsylvania Department of Transportation. Sivick
approved the list of registrants. Son attended the training, but he had yet to apply for a
position. On June 3, 2013, Son applied for Township employment in the position of
“Public Works Maintenance.”
Five official Board meetings were held in June, with two in the period between the
date of Son’s application and the beginning of his Township employment on June 10,
2013, but the minutes from these meetings do not reflect any discussion or vote with
regard to Son’s employment.8 As Public Works Director, Sivick was responsible for
reviewing, verifying, and signing timesheets for all Township employees, including Son.
Over eighty-one pay periods between 2013 and 2016, the Township paid Son gross
earnings totaling $126,552. Son’s Township employment ended on June 30, 2016.
On November 15, 2015, the Commission received a signed, sworn complaint
alleging that Sivick violated the Ethics Act. In January 2016, the Commission began a
preliminary inquiry, which led to a full investigation. During its investigation, the
Commission interviewed Township Supervisors and other public employees. Vollmer told
8 This is discrepant with the parties’ stipulation that, if called to testify, Menditto
would attest that “there was no formal hiring process at the Township during the entire
time he served as a Township Supervisor [2004-2014], but rather, [Sivick] did all of the
hiring.” Id. at 10 ¶34.d. Menditto also would testify that the lone exception during his
tenure was in Son’s case, which, he contended, was subject to a Board vote, Sivick
abstaining, approved by Menditto and Vollmer. Vollmer corroborated this account. Id.
at 10-11 ¶34.f, 12 ¶35.j.
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the Commission that he raised “various concerns about hiring [Sivick]’s son,” but relented
after Sivick “pled his case . . . about seeing his son get a chance.”9 When Vollmer
mentioned that the nepotism policy stood in the way, Sivick said “we’re going to have to
change the book then.”10 In stipulated testimony, Township Treasurer Robert Rohner
asserted that Sivick told him, “I want to hire my son[, so] we need to change the
[handbook],”11 and that Sivick “did not present the handbook change and hiring Sivick’s
[s]on as a suggestion, but rather as a directive.” 12 Rohner also told the Commission
investigator that Sivick created the road crew position specifically for Son.13
On February 1, 2018, the Commission issued its final adjudication, determining
that Sivick violated, inter alia, Subsection 1103(a), the conflict of interest provision of the
Act.14 Subsection 1103(a) provides: “No public official or public employee shall engage
in conduct that constitutes a conflict of interest.”15 “Conflict of interest” is defined, in
relevant part, as “[u]se by a public official or public employee of the authority of his office
9 Comm. Adj. at 11-12 ¶35.d (quoting Stipulated Record at 75).
10 Id. at 12 ¶35.d.4 (quoting Stipulated Record at 69).
11 Sivick, 202 A.3d at 817 n.8 (quoting Stipulated Record at 39).
12 Id. (citing Stipulated Record at 39-40).
13 Id. at 818 n.12 (citing Stipulated Record at 24).
14 The Commission also ruled that Sivick violated Subsections 1104(d) and 1105(a)
of the Act for filing deficient statements of financial interest (“SOFI”) and
Subsection 1105(b)(5) because he received compensation from the Township when he
did not have accurate and complete SOFIs on file. These violations are not at issue in
this case.
15 65 Pa.C.S. § 1103(a).
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or employment . . . for the private pecuniary benefit of himself [or] a member of his
immediate family.”16
Specifically, the Commission found:
Sivick used the authority of his public positions for the private pecuniary
benefit of Son . . . [1] when he participated in discussions and actions of the
Board to eliminate the Township’s Nepotism Policy with the intent and for
the purpose of having Son hired as a Township road crew employee;
[2] when he discussed, recommended, lobbied, influenced, or sought the
support of the Board to effectuate the hiring of Son as a Township
employee; and [3] when he verified Township records enabling and/or
otherwise directing the payment of salary/wage to Son from public monies.
****
Sivick’s discussions/actions to effectuate the removal of the Nepotism
Policy—a policy that Sivick had voted to approve only a few years earlier—
were undertaken with the specific intent, motivation, and purpose of
enabling the hiring of Son . . . by the Township.
****
But for being a Supervisor, Sivick would not have been in a position to
engage in such communications and to exert such influence to effectuate
the hiring of Son. Sivick was consciously aware of the private pecuniary
benefit Son would receive if hired by the Township, and Sivick’s actions in
16 In full, the Act defines conflict of interest and delineates a broad exception to the
rule that is central to the discussion that follows:
Use by a public official or public employee of the authority of his 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 or 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.
65 Pa.C.S. § 1102. Conflict of interest is a felony subject to a fine of up to $10,000 and/or
imprisonment for up to five years. Id. § 1109(a).
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getting the Nepotism Policy eliminated and Son hired were steps to secure
that private pecuniary benefit.17
The Commission ordered Sivick to pay $30,000 in restitution pursuant to 65 Pa.C.S.
§ 1107(13), which provides that “[a]ny order resulting from a finding that a public official
or public employee has obtained a financial gain in violation of this chapter may require
the restitution plus interest of that gain to the appropriate governmental body.” 18
Sivick filed a timely petition for review in the Commonwealth Court, raising five
issues, only two of which are relevant here. First, Sivick maintained that the Commission
erred in concluding that he committed a conflict of interest violation by verifying and
approving Son’s payroll records—item [3] in the above excerpt—because Son was a
member of a subclass subject to Sivick’s supervision, and thus fell within the subclass
exception codified in the definition of conflict of interest.19 Second, Sivick argued that the
Commission abused its discretion by ordering him to pay restitution under
Subsection 1107(13) of the Act, when any financial benefit redounded solely to Son, who
was compensated on par with his cohort for the work he performed, and who was neither
a public official nor a public employee subject to restitution.
The Commonwealth Court affirmed the Commission’s adjudication. To prove a
violation of Subsection 1103(a) of the Act, the court explained, the Commission must
17 Comm. Adj. at 20-22 (names changed for consistency of reference).
18 The Commission also directed Sivick to file complete and accurate SOFIs for 2011
and 2014.
19 See 65 Pa.C.S. § 1102 (creating a safe harbor for “an action having a de minimis
economic impact or which affects to the same degree of . . . a subclass consisting of an
industry, occupation or other group which includes the public official or public employee,
[or] a member of his immediate family”).
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establish by clear and convincing evidence that: (1) a public official (2) used the authority
of his office (3) for the private pecuniary gain of himself, an immediate family member, or
a business with which he is associated.20 The court also cited this Court’s holding that “a
public official must be consciously aware of a private 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.”21 The Commonwealth Court further observed that the Commission
consistently has ruled that “use of authority” includes “discussing, conferring with others,
and lobbying for a particular result.”22
The court concluded that, “[r]egardless of whether Sivick’s interaction with the
other Supervisors about repealing the Nepotism Policy and hiring his Son were
considered requests, recommendations[,] or veiled heavy-handed mandates, they were
nevertheless made in his capacity as Board Chairman and Roadmaster.”23 Sivick’s
abstention from voting to remove the policy from the handbook did not vitiate his violation
because Sivick “encouraged the other Supervisors to eliminate the Nepotism Policy so
the Board could vote on his Son's hiring, and then lobbied the Township to hire his Son.”24
After rejecting Sivick’s challenges to the first and second grounds upon which the
Commission based its finding of a conflict of interest violation, the court turned to Sivick’s
contention that the Commission erred in finding a separate violation in Sivick’s verification
20 See Sivick, 202 A.3d at 821.
21 Kistler v. State Ethics Comm’n, 22 A.3d 223, 231 (Pa. 2011).
22 Sivick, 202 A.3d at 823-24.
23 Id. at 824.
24 Id. at 825.
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and approval of Son’s payroll records. Sivick maintained that there was no evidence that
Son received a private pecuniary benefit to which to he was not entitled or that Son was
not a member of a subclass comprising individuals collectively subject to Sivick’s
supervision, such that his involvement in payroll approvals was excluded under the
subclass exception in the definition of conflict of interest.
In this regard, Sivick relied upon the Commonwealth Court’s decision in Kraines v.
State Ethics Commission.25 In Kraines, the Commonwealth Court overturned the
Commission’s adjudication that Kraines, a county controller, violated the Ethics Act by
signing off on payments to her husband, a forensic pathologist, who provided autopsy
and other services to the county on a contract basis. In finding no violation, the
Commonwealth Court reasoned that Kraines’ husband had performed autopsies in the
county for years before Kraines became controller, and that Kraines had no role in either
the coroner’s decision to retain her husband or in setting her husband’s compensation.
The court distinguished Sivick’s case, noting that “Sivick initiated the improper scheme to
have the Township’s Nepotism Policy repealed and his son hired.”26 In effect, the court
commingled with the payroll-related activities what both the Commission—and,
elsewhere, the court itself—had seemed to identify as discrete violations associated with
Son’s hiring.
Treating those violations as distinct, and relying upon a prior version of the conflict
of interest provision, which stated that no public official shall use his office to “obtain
25 805 A.2d 677 (Pa. Cmwlth. 2002).
26 Sivick, 202 A.3d at 825.
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financial gain other than compensation provided by law,”27 Sivick argued that no payroll-
related violation occurred because Son’s compensation, qua private pecuniary benefit,
was duly earned. But the court rejected that argument, observing that the “current conflict
of interest standard . . . makes any private pecuniary gain to a public official a violation,
whether or not such compensation is otherwise provided for by law.”28
The court also credited the Commission’s reasoning that Sivick’s actions were not
broad conduct generally affecting all Township employees; rather, the review and
approval of each employee’s timesheet was distinct to the employee.29 As such, relative
to Sivick’s payroll-related activities, each Township employee was a class of one, and
each approval in some sense was an isolated conferral upon the employee of a private
pecuniary benefit.
Finally, Sivick challenged the Commission’s order requiring him to pay $30,000 in
restitution to the Commonwealth, arguing that the Commission may order restitution only
where a public official or public employee,30 but not a third party, has obtained a financial
27 See 65 P.S. § 403(a) (repealed) (emphasis added).
28 Sivick, 202 A.3d at 826 (quoting Snyder v. State Ethics Comm’n, 686 A.2d
843, 853 n.16 (Pa. Cmwlth. 1996) (emphasis added in Sivick)).
29 See id. at 827 (citing Comm. Adj. at 22).
30 The Act defines “public employee” as:
Any individual employed by the Commonwealth or a political subdivision
who is responsible for taking or recommending official action of a
nonministerial nature with regard to:
(1) contracting or procurement;
(2) administering or monitoring grants or subsidies;
(3) planning or zoning;
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gain, a term that the Act does not define.31 The Act provides, in pertinent part, that “[a]ny
order resulting from a finding that a public official or public employee has obtained a
financial gain in violation of this chapter may require the restitution plus interest of that
gain to the appropriate governmental body.”32 Because Son, who undisputedly was
neither a public official nor a public employee, was the only individual who received a
financial gain, Sivick contended that the Commission lacked authority to order restitution.
The panel disagreed with Sivick’s interpretation, concluding that
Subsection 1107(13)’s reference to “a finding that a public official or public employee has
obtained a financial gain in violation of this chapter” must be read consistently with the
definition of conflict of interest, which refers to financial gain “benefit[ting] the public official
or public employee [or] a member of his immediate family.”33 Any other interpretation,
the court determined, “would be illogical and result in an inconsistent application of the
(4) inspecting, licensing, regulating or auditing any person; or
(5) any other activity where the official action has an economic impact
of greater than a de minimis nature on the interests of any person.
The term shall not include individuals who are employed by this
Commonwealth or any political subdivision thereof in teaching as
distinguished from administrative duties.
65 P.S. § 1102. In relevant part, a “public official” is defined as “[a]ny person elected by
the public or elected or appointed by a governmental body or an appointed official in the
executive, legislative or judicial branch of this Commonwealth or any political subdivision
thereof.” Id.
31 Sivick does not challenge his status as a public official and/or a public employee
under the Act.
32 Id. § 1107(13).
33 Id. § 1102 (emphasis added).
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Ethics Act based solely upon who happened to benefit from the prohibited conduct.”34
“[B]ecause [Son’s] salary was a direct consequence of Sivick’s use of his authority of
office, it was financial gain in violation of [the Act] for which the Commission could order
restitution.”35
Sivick sought this Court’s review, and we granted his petition as to two issues.36
Both issues require this Court to interpret the Ethics Act.37 Our task is a familiar one:
The object of all statutory interpretation is to ascertain and effectuate the
intention of the General Assembly, giving effect, if possible, to all provisions
of the statute. In general, the best indication of legislative intent is the plain
language of a statute. When the words of a statute are clear and free from
all ambiguity, the letter of it is not to be disregarded under the pretext of
pursuing its spirit. Words of the statute are to be construed according to
their common and approved usage.38
34 Sivick, 202 A.3d at 830.
35 Id. at 830 (cleaned up).
36 The issues, which we rephrased for clarity, are:
1) Whether, under Section 1107(13) of the [Ethics Act], the State Ethics
Commission, upon a finding that a public official or public employee violated
the Act, has the authority to order restitution when the individual who
obtained financial gain is not the public official or employee, but is an
immediate family member of the public official or employee?
2) Whether the action of a public official or public employee reviewing
and approving payroll records of a group of subordinate employees, one or
more of whom is the public official’s or employee’s immediate family
member, falls within the class/subclass exemption of the “conflict of interest”
definition in the [Ethics Act]?
Sivick v. State Ethics Comm’n, 217 A.3d 182 (Pa. 2019) (per curiam).
37 Statutory interpretation presents a question of law that we review de novo subject
to a plenary scope of review. Bowling v. Office of Open Records, 75 A.3d 453, 466
(Pa. 2013).
38 Kistler, 22 A.3d at 227 (cleaned up); see generally 1 Pa.C.S. §§ 1903, 1921.
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In this case, the Act’s plain language suffices to resolve both of the questions at issue.
We begin with the Commission’s determination that Sivick’s discrete act of
verifying and approving Son’s compensation amounted to a conflict of interest violation.
As set forth above, the Ethics Act defines conflict of interest as follows:
Use by a public official or public employee of the authority of his 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.[39] 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.40
Sivick argues that, in the chain by which Son was compensated for work he
performed satisfactorily for compensation that was paid on the same rate schedule as
applied to similarly-situated Township employees, Sivick performed precisely the same
role vis-à-vis a subclass of Township employees. By contrast, the Commission would
have this Court treat Sivick as having performed his role toward each employee in
isolation from the others, denying recourse to the subclass exception.
Sivick directs us to various stipulations describing the details of his role in
reviewing and approving each employee’s time sheets. In sum, Sivick explains:
For the 9 or so full-time employees assigned to the Public Works
Department, including [Son], five factual, critical characteristics existed:
39 The Act does not define “private pecuniary benefit,” but we considered what that
term encompasses at length in Commonwealth v. Veon, 150 A.3d 435, 445-47
(Pa. 2016). For present purposes, we assume arguendo that Son’s receipt of fair
compensation for services duly rendered qualifies as a “private pecuniary benefit”
bestowed upon a member of Sivick’s immediate family.
40 65 Pa.C.S. § 1102.
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1. All of them were supervised by Sivick.
2. All worked a 40-hour workweek consisting of five (5), eight (8)[-]hour
workdays which traditionally began on Monday and ended on Friday.
3. All were paid at rates set annually by the [Board], not Sivick
individually.
4. All received the same benefits package fixed by the [Board].
5. All submitted timesheets allocating their full-time work hours or time
off to Sivick, who then examined the same for accuracy and
completeness and passed them along for additional checking by an
administrative secretary and Secretary-Treasurer Rohner who then
arranged for approval by the [Board] and direct deposit into the
employees’ respective bank accounts.41
The Commission does not dispute that Sivick’s payroll-related activity is accurately
described. The question is how best to characterize that activity.
Although the parties offer no decisional law from this Court elaborating upon the
exception, and the Commission offers no case law at all, Sivick relies heavily upon the
Commonwealth Court’s well-reasoned opinion in Kraines, supra. As set forth above,
County Controller Kraines’ husband, who entered into a self-renewing annual contract
with the approval of the county commissioners years before his wife became controller,
was paid an annual retainer that covered certain services, but he was paid separately for
autopsies and other services, which he billed at a rate originally set in the contract. As
controller, Kraines’ signature was required upon checks issued in payment of county bills,
so she facilitated payments to her husband and other pathologists, all of whom were paid
at the same rates. The Ethics Commission found that Kraines issued fifty-seven checks
41 Brief for Sivick at 19-20 (record citations omitted).
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to her husband in violation of Subsection 1103(a), because her actions conferred a
private pecuniary benefit upon her husband.42
On appeal, the Kraines court noted that to violate Subsection 1103(a) a public
official or employee must “use” her public position to obtain the financial gain. Although
the Ethics Act does not define “use,” the Commonwealth Court relied upon Kistler, in
which we held that “‘[u]se’ of public office requires action by a public official that in some
way facilitates his receipt of compensation to which he is not entitled.”43 However, the
Kraines court found no “use” in the facts before it. Kraines had no role in the coroner’s
decision to retain her husband and no involvement in the rate of payment. Like other
contract pathologists, he was paid at a rate approved by the coroner, the county budget
director, and the county commissioners. “While Kraines approved payments via her
stamped signature on County checks to her husband for pathologist fees, such action in
and of itself does not constitute an ethics violation as Dr. Hoffman was entitled to these
fees.”44
42 The Commission found that no restitution was due and imposed no other penalty.
43 Kistler, 22 A.3d at 229 (quoting McGuire v. State Ethics Comm’n, 657 A.2d 1346,
1351 (Pa. Cmwlth. 1995)); see Kraines, 805 A.2d at 681 (citing the same passage from
McGuire); see also Kistler, 22 A.3d at 227 (Pa. 2011) (defining “use” for statutory
purposes as “act[ing] in such a way as to put his office to the purpose of obtaining for
himself a private pecuniary benefit,” describing the act as one “directed toward [that]
purpose”).
Interestingly, in some sense our allusion in Kistler to “compensation to which he is
not entitled” recalls the since-repealed version of the conflict of interest provision caveat,
for “financial gain other than compensation provided by law,” 65 P.S. § 403(a) (repealed),
a provision that, as discussed supra, Sivick cited before the Commonwealth Court and
the court rejected as irrelevant in light of subsequent amendments to the Act.
44 Kraines, 805 A.2d at 681.
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The reason for Sivick’s reliance upon this case is obvious. Given the Board’s role
in setting compensation rates, its employment of an objective metric in doing so, the
involvement of other officials in facilitating the Township payroll, and Son’s entitlement to
compensation for his work on the same terms as similarly-situated employees, Sivick
contends that he did not use his office to benefit Son in verifying and approving the payroll.
To be sure, there are differences between this case and Kraines. In particular, the
sum of Kraines’ behavior in that case was clearly less blameworthy than was Sivick’s in
this case, where the Commission found other bases for violations in connection with
Sivick’s role in soliciting the elimination of the nepotism policy and the hiring of Son in the
first instance. In those actions, Sivick plainly “used” his office to facilitate Son’s private
pecuniary benefit. Kraines’ husband, on the other hand, had established himself as a
contract pathologist to the county years before Kraines took office. But the issue as
described by this Court in its order granting allowance of appeal and as argued by the
parties implicates not the Commission’s findings in sum, but the narrower question of
whether Sivick’s involvement in approving payroll, standing alone, violated
Subsection 1103(a) simply because Son was a Township employee. With the question
cabined in this way, there is very little daylight between this case and Kraines.
The Commission contends that Son’s payment was based on his individual
timesheet, which was examined for accuracy by Sivick in isolation from those of the others
in his cohort, not as part of an activity directed at a subclass of Township employees as
such. If we hold otherwise, the Commission suggests, “the class/subclass exception
functionally loses its meeting. Before there can be a class/subclass exception there must
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first be a class or subclass.”45 In this regard, the Commission proposes to distinguish
these facts from a circumstance in which Sivick voted to provide an across-the-board pay
raise to road crew workers as a class. While reviewing and signing off on timesheets was
“similar” as to each employee, each approval affected only one person.46
The Commission’s effort to treat each approval in isolation is strained and
unconvincing. In confirming the hours worked and approving Son’s compensation in the
same compensation schedule and structure that applied to his cohort, Sivick did nothing
more to use his office to benefit Son than Kraines did in approving a discrete payment to
her husband for an autopsy that he performed. It is true that each approval, in some
sense, is a discrete act, inasmuch as one can imagine that, detecting an anomaly, Sivick
might decline to approve any one employee’s compensation in a given period while
approving the other employees’ compensation. But the same was true in Kraines; any
given payment to any given pathologist might not have been due, rendering each
approval an independent act of sorts. Still, the compensation for work duly performed in
Kraines was dictated by preexisting terms that applied uniformly to a class of contractors
to which Kraines’ husband belonged. The same is true here. Provided that members of
the road crew put in their time, Sivick had no apparent discretion to deny payment at the
Board-approved rate.
It is true that, in wielding his pen to authorize payment to Son while wearing his
Township Supervisor hat, Sivick in some sense used his office to assure Son’s receipt of
money in the form of payroll. But the use in question lacked the affirmative character that
45 See Brief for the Commission at 19.
46 See id. at 19-20.
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we described in Kistler. Had Sivick only been a member of the Board of Supervisors, and
had he only solicited the repeal of the nepotism policy and Son’s hiring, whoever else
occupied the role of Supervisor/Roadmaster presumably would have authorized precisely
the same payments to Son. In doing so, that hypothetical person would have understood
his or her task to apply generally to the subclass of Township employees; indeed, one
could imagine such a person citing as an excuse to escape a tedious conversation that
he or she had to get back to the office to “do payroll.”47
The Commonwealth Court’s reasoning in Kraines is sound. The performance by
a public officer or employee of an administrative or ministerial act entailing little or no
discretion that benefits a subclass that includes an immediate family member does not,
without more, constitute a conflict of interest violation. The narrow aspect of Sivick’s
Township employment that involved verifying hours worked by Public Works employees
and approving their compensation applied collectively and equally to the subclass of
employees, not to individuals as such. Accordingly, the subclass exception applied here,
and we reverse the Commonwealth Court’s contrary ruling.
47 In this regard, it is worth noting that the apparent intent, or at least an incidental
benefit, of the subclass exception is that, in requiring that the entire class including the
public official’s immediate family member be treated equally, it excludes from its
protection any instance of preferential treatment of the family member by the official. As
Amicus Curiae the Pennsylvania State Association of Township Supervisors explains on
Sivick’s behalf, mere approval of payroll on equal terms does not make every employee
a class of one, but as soon as one member of the subclass receives preferential
treatment, the cohort in question is no longer being treated as a class, and the proposition
that each approval is a discrete rather than a subclass-directed act becomes true. See
Brief of Amicus Curiae Pa. State Ass’n of Twp. Supervisors at 15. At no time has anyone
suggested that Son received preferential treatment once he began his Township
employment.
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Next, we consider whether the Commission had authority to impose a restitutionary
sanction, even though the disbursements associated with Sivick’s conflict of interest
violation ran solely to Son and undisputedly were earned and paid at a Board-approved
rate on the same terms as all similarly-situated employees. The Ethics Act provides, in
relevant part: “Any order resulting from a finding that a public official or public employee
has obtained a financial gain in violation of this chapter may require the restitution plus
interest of that gain to the appropriate governmental body.”48
In full, the Commission explained the basis for its imposition of restitution as
follows:
The private pecuniary benefit [, i.e., net compensation,] that [Son] received
as a result of [Sivick’s] violation of Section 1103(a) of the Ethics Act was
$87,949.36. Although there is certainly a legal basis for imposing restitution
in the amount of $87,949.36, we will, in the exercise of our discretion, limit
the amount of restitution to be paid by [Sivick] to $30,000.00, with such
restitution to be paid to the Pennsylvania Office of the State Treasurer,
through this Commission, for deposit in the General Fund of the
Commonwealth of Pennsylvania.49
The Commonwealth Court accepted the Commission’s argument that
Subsection 1107(13)’s use of “financial gain” must be informed, and effectively expanded,
by the Act’s definition of conflict of interest.
This [c]ourt interprets Section 1107(13) of the Ethics Act consistent with
Section 1102 of the Ethics Act, which defines “conflict of interest,” in
relevant part, as “[u]se by a public official or public employee of the authority
of his office or employment . . . for the private pecuniary benefit of himself,
[or] a member of his immediate family . . . .” 65 Pa.C.S. § 1102. Thus, the
reference to “a finding that a public official or public employee has obtained
a financial gain in violation of this chapter” in Section 1107(13) of the
Ethics Act, 65 Pa.C.S. § 1107(13) (emphasis added), refers to a financial
gain “benefit[ing the public official or employee], [or] a member of his
immediate family[.]” 65 Pa.C.S. § 1102. Any other interpretation would be
48 65 Pa.C.S. § 1107(13).
49 Comm. Adj. at 23.
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illogical and result in an inconsistent application of the Ethics Act based
solely upon who happened to benefit from the prohibited conduct. . . . Had
Sivick not engaged in the improper conduct, the Board would not have
rescinded the Nepotism Policy or hired his Son. Because Sivick’s Son’s
salary was a direct consequence of Sivick’s use of his authority of office, it
was “financial gain in violation of [the Ethics Act]” for which the Commission
could order restitution.50
Before this Court, Sivick renews the plain language argument that the lower court
rejected: Because Son was not a public official or public employee, and because he
alone received a financial gain, restitution simply is not available. In importing the phrase
“[or] a member of his immediate family” from the definition of conflict of interest into
Subsection 1107(13) and adding it to the less expansive reference in that subsection to
“public official or employee,” the court committed the cardinal sin of adding language that
the legislature presumably omitted deliberately.51
We agree with Sivick. As always, our interpretive function requires us to identify
the intent of the legislature, and we begin with the presumption that unambiguous
statutory language embodies that intent, requiring no further investigation. We may not
disregard the Act’s unambiguous language in service of what we believe to be the spirit
50 Sivick, 202 A.3d at 830.
51 Cf. Burke ex rel. Burke v. Ind. Blue Cross, 103 A.3d 1267, 1274 (Pa. 2014)
(referring to “the precept that courts cannot insert words into a statute”). Interestingly, in
Burke we found a “rare case in which the plain text of an unambiguous statute does not
appear to be the best indication of legislative intent.” Id. The statutory language was
clear, but it created “an asymmetry stemming from an apparent legislative oversight.” Id.
at 1273. Even so, we underscored that such an asymmetry, even a critical one, does not
constitute ambiguity as such. And in fashioning a remedy, we took care not to simply
rewrite the statute.
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of the law.52 Furthermore, while we must consider the statutory language in its full context
before we assess ambiguity,53 we must not overlabor to detect or manufacture ambiguity
where the language reveals none.54 And in any event, neither party suggests that the Act
is ambiguous in this connection; they simply differ as to the putative thrust of the Act’s
terms. While this might suggest the presence of two reasonable interpretations, signaling
ambiguity,55 we do not believe the Commission’s interpretation is reasonable.
It is axiomatic that we may not add statutory language where we find the extant
language somehow lacking:
Under the doctrine of expressio unius est exclusio alterius, the inclusion of
a specific matter in a statute implies the exclusion of other matters.
Similarly, this Court has long recognized that as a matter of statutory
interpretation, although one is admonished to listen attentively to what a
statute says[,] one must also listen attentively to what it does not say. 56
52 See 1 Pa.C.S. § 1921(b); Koken v. Reliance Ins. Co., 893 A.2d 70, 82 (Pa. 2006)
(“Where it is unambiguous, the plain language controls, and it cannot be ignored in pursuit
of the statute’s alleged contrary spirit or purpose.”).
53 See A.S. v. Pa. State Police, 143 A.3d 896, 906 (Pa. 2016) (citing King v. Burwell,
576 U.S. 473, 486 (2015)) (advising that “we should not interpret statutory words in
isolation but must read them with reference to the context in which they appear,” and
endorsing the United States Supreme Court’s “contextual approach in assessing statutes
and in determining predicate ambiguity”); see also King, 576 U.S. at 486 (“So when
deciding whether the language is plain, we must read the words in their context and with
a view to their place in the overall statutory scheme. Our duty, after all, is to construe
statutes, not isolated provisions.” (cleaned up)).
54 See Commonwealth v. Office of Open Records, 103 A.3d 1276, 1285 (Pa. 2014)
(rejecting an argument in support of ambiguity that “improperly” viewed the language in
question “in isolation,” rather than reading it “in conjunction with the rest of the statute,”
which revealed unambiguous textual evidence of the legislature’s intent).
55 See Commonwealth v. McClelland, ___ A.3d ___, 2020 WL 4092109, at *12
(Pa. July 21, 2020) (“A statute is ambiguous when there are at least two reasonable
interpretations of the text.”).
56 Thompson v. Thompson, 223 A.3d 1272, 1277 (Pa. 2020) (cleaned up); see
Discovery Charter Sch. v. Sch. Dist. of Phila., 166 A.3d 304, 321 (Pa. 2017) (finding
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“[T]he court may not supply omissions in the statute when it appears that the matter may
have been intentionally omitted.”57 The language the Commission would have us read
by implication into Subsection 1107(13)—“or a member of his immediate family
member”—specifically appears in Section 1102, signaling that, in fashioning the Act, the
General Assembly was both conscious of a distinction between public officials and
employees and their immediate families and aware that among the ways a public official
or employee might seek to benefit would be to divert a private pecuniary benefit to others
close to them. That Subsection 1107(13) did not expressly provide for restitution where
a public official or employee confers a financial benefit upon an immediate family member
leads us to conclude that the legislature did not intend to make restitution available under
that circumstance.
Against this conclusion, the lower court suggests that the legislature would have
intended that the additional language of the definition of conflict of interest concerning
immediate family members be read into the restitutionary provision because to do
otherwise would be “illogical.” It is not our role to improve upon the logic of complex
statutory schemes like the Ethics Act or to identify and rectify every apparent
inconsistency in an effort to make the Act appear more logical by our measure.
In defining conflict of interest to apply where, by official act, a public official or public
employee confers a private pecuniary benefit upon himself or a member of his immediate
probative of legislative intent the absence of a provision from one section that correlated
with an express provision in another and observing that “[w]e cannot ignore this
Legislative silence because when interpreting a statute, we must listen attentively to what
the statute says, but also to what it does not say” (internal quotation marks omitted)).
57 Commonwealth v. Spotz, 716 A.2d 580, 590 (Pa. 1998).
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family, the General Assembly signaled that it did not believe immediate family members
to be implied by the mere reference to a public official or public employee.58 It would
require quite a leap to conclude that, just five sections later in the same Act, the legislature
thought it so obvious that restitution should be available for a public official’s conferral of
a benefit upon his immediate family member that the latter scenario need not be spelled
out separately as a basis for restitution. In the above-excerpted passage of its opinion,
the lower court suggests with bracketed language that it merely substituted one term’s
definition for a later usage of that term, but that simply is not the case. In fact, the court
added language from the definition of conflict of interest, importing that definition’s use of
“immediate family” to the restitution provision, which conspicuously lacks that term. There
is no direct textual indication that the legislature intended to expand sub silentio the class
of beneficiaries whose financial gain might trigger restitution.
We do not disagree with the Commonwealth Court that the Act, so understood,
creates a risk of inconsistent application. But to call it “illogical” overstates the case. The
General Assembly might rationally have concluded that restitution should be among the
available sanctions when the moneys diverted were retained or used directly by the
offender, while choosing not to authorize such a sanction when diversion to a third (and
blameless) party would create the risk of complications exceeding the benefit to be
gained, or, alternatively, was perceived as less blameworthy than an official lining his or
58 See 1 Pa.C.S. §§ 1921(a) (“Every statute shall be construed, if possible, to give
effect to all its provisions.”), 1922(2) (providing that courts may presume “[t]hat the
General Assembly intends the entire statute to be effective and certain”); see also Ind. Oil
& Gas Ass’n v. Bd. of Assessment, 814 A.2d 180, 183 (Pa. 2002)) (“[B]ecause the
legislature is presumed to have intended to avoid mere surplusage, every word, sentence,
and provision of a statute must be given effect.”).
[J-47-2020] - 23
her own pockets. Notably, the Commission has other arrows in its quiver for sanctioning
and deterring Conflicts of Interest. A conflict of interest violation is a felony, and it is
punishable by imprisonment of up to five years and a fine of up to $10,000. 59 In any
event, where the language is clear, any further inquiry into or speculation regarding the
legislature’s overarching vision for the Act is gratuitous.
In providing that a restitution award may be imposed upon a “public official or public
employee [who] has obtained a financial gain in violation of” the Act, the General
Assembly used common terms in a clear way, terms that it saw fit to modify to expand
the class in defining conflict of interest but not to expand in connection with restitution.
Hewing to the statutory language, we hold that restitution under the Ethics Act may be
imposed only upon public officials and employees who themselves gain financially by
violating the Ethics Act, not upon those who divert improperly obtained moneys to
members of their immediate families.60 Accordingly, we reverse the Commonwealth
Court’s contrary conclusion.
Having established that one of the three stated bases for the Commission’s finding
that Sivick violated Subsection 1103(A) of the Act is infirm and that the Commission
59 See 65 Pa.C.S. § 1109(a). Interestingly, Subsection 1109(c) provides for treble
damages as follows: “Any person who obtains financial gain from violating any provision
of this chapter, in addition to any other penalty provided by law, shall pay a sum of money
equal to three times the amount of financial gain resulting from such violation . . . .” Once
again, the Act imposes a financial penalty on a person “who obtains” a financial gain from
his or her wrongdoing, and once again makes no reference to other potential third-party
beneficiaries of the impropriety.
60 We offer no opinion regarding which side of the line drawn in this case might lie a
“business with which [a public official or public employee] . . . is associated,” which, given
the more direct connection to the presumptive interests of the public official or public
employee, may warrant separate consideration in a suitable case.
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lacked statutory authority to impose restitution under the circumstances of this case, we
now must address how to proceed on remand. Although conflict of interest is a felony,
the Commission’s approach to this case was not like a conventional criminal matter, which
typically proceeds by reference to individual counts as to each of which a defendant is
convicted or acquitted, with certain potential penalties attaching to each conviction. By
contrast, the Commission’s adjudication identified three distinct but interrelated actions
as violating Subsection 1103(a) without making clear whether each cited basis was
sufficient by itself, or whether the violation was based upon aggregating the cited
wrongdoing into one course of conduct.61 This creates a degree of uncertainty that is
only exacerbated by the Commission’s imposition of a single sanction. It is exacerbated
further still, now, by this Court’s determination that the lone sanction imposed lacked a
statutory basis—and was, in a sense, an illegal sentence. The parties do not address this
complication, which was immaterial to the court below because it affirmed the
Commission’s Adjudication.
When an appellate court invalidates any among a number of convictions in a given
case, or otherwise deems invalid any component of a sentencing scheme in such a
matter, we assume that the court, having imposed sentence with an overarching
understanding of the aggregate sanction, should have the opportunity to fashion a new
61 See Comm. Adj. at 22 (ruling that Sivick violated Subsection 1103(a) of the Act
“when he participated in discussions and actions of the Board to eliminate the Township’s
Nepotism Policy with the intent and for the purpose of having his son hired as a Township
road crew employee; when he discussed, recommended, lobbied, influenced, or sought
the support of the Board to effectuate the hiring of his son as a Township employee; and
when he verified Township records enabling and/or otherwise directing the payment of
salary/wage to his son from public monies”).
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judgment of sentence.62 Here, it isn’t even entirely clear that the Commission would have
found a conflict of interest violation at all without one of its three cited bases for the
violation deemed invalid. But even if the Commission sustains its finding of a conflict of
interest violation on the cited bases that remain undisturbed by our ruling, it may well wish
to consider alternative sanctions available to it under Section 1109 of the Act.63 That is
the Commission’s decision to make on remand.
We reverse the Commonwealth Court’s decision and vacate the Commission’s
Adjudication. We remand for further proceedings consistent with this Opinion, including,
in the Commission’s discretion, the entry of a new adjudication and, if it deems
appropriate, the imposition of any sanction available under the Act.
Chief Justice Saylor and Justices Todd, Donohue, Dougherty and Mundy join the
opinion.
Justice Baer concurs in the result.
62 See generally Commonwealth v. Goldhammer, 517 A.2d 1280, 1283 (Pa. 1986)
(noting that 42 Pa.C.S. § 706 authorizes an appellate court to remand for further
proceedings consequent to the reversal of a trial court’s order, including sentencing,
especially when the appellate ruling “alter[s] the [court’s] sentencing scheme”);
Commonwealth v. Thur, 906 A.2d 552, 569 (Pa. Super. 2006) (“If our disposition upsets
the overall sentencing scheme of the trial court, we must remand so that the court can
restructure its sentence plan.”).
63 See 65 Pa.C.S. § 1109.
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