HomeMy WebLinkAbout08-565 MackerethBrett Feese, Esquire
Chief Counsel to the
House Republican Caucus
Suite B -6, Main Capitol
P.O. Box 202228
Harrisburg, PA 17120 -2228
Dear Mr. Feese:
ADVICE OF COUNSEL
August 1, 2008
08 -565
This responds to your letter of June 29, 2008, by which you requested an
advisory from the Pennsylvania State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa. .S. § 1101 et seq., would present any prohibitions or restrictions upon a Member of
the Pennsylvania House of Representatives in her capacity as a public official if, in her
private capacity, she would enter into a contract to provide part -time consulting services
to a county until such time as the Member would begin full -time employment with said
county upon the expiration of her current term of office.
Facts: As Chief Counsel to the Republican Caucus of the Pennsylvania House of
Representatives (hereinafter, "House of Representatives "), you request an advisory
from the Pennsylvania State Ethics Commission on behalf of State Representative
Beverly Mackereth "Representative Mackereth "). You have submitted facts that may
be fairly summarized as follows.
Representative Mackereth represents the 196 Legislative District in York
County. You state that Representative Mackereth has decided to withdraw as a
candidate for re- election in order to accept a position as the Executive Director of
Human Services for York County beginning in December 2008. You further state that in
order to expedite and facilitate Representative Mackereth's transition into the aforesaid
position, York County has requested that she enter into a part -time consulting contract
to provide services to the York County Human Services Department ( "Human Services
Department ") until she begins serving as a full -time employee in December 2008.
Based upon the above submitted facts, you ask whether the Ethics Act would
impose any prohibitions or restrictions upon Representative Mackereth in her capacity
as a public official if, in her rivate capacity, she would enter into a consulting contract
with York County to provide services to the Human Services Department until she
becomes the Executive Director of Human Services for York County in December 2008.
Feese, 08 -565
August 1, 2008
Page 2
It is administratively noted that Representative Mackereth's current term of office
with the House of Representatives will end on November 30, 2008. See, Pa. Const. Art.
2, § 2.
Discussion: It is initially noted that 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 of the 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 of the material facts.
As a Member of the House of Representatives, Representative Mackereth is a
public official subject to the provisions of the Ethics Act. See, e.q., Boback, Opinion 08-
002; Feese, Opinion 07 -015. Sections 1103(a) and 1103(j) of the Ethics Act provide as
follows:
§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), (j).
The following terms 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
Feese, 08 -565
August 1, 2008
Page 3
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.
"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.
Section 1103(a) of the Ethics Act generally does not prohibit public officials /public
employees from having outside business activities or employment. However, a public
official /public employee may not use the authority of the public position - -or confidential
information obtained by being in that position - -for the advancement of the public
official's /public employee's own private pecuniary benefit or that of a business with
which he or she is associated. Pancoe, Opinion 89 -011. Examples of conduct that
would be prohibited under Section 1103(a) would include: (1) the ursuit of a private
business opportunity in the course of public action, Metrick, Order 1037; (2) the use of
governmental facilities, such as governmental telephones, postage, equipment,
research materials, or other property, or the use of governmental personnel, to conduct
private business activities, Freind, Order 800; Pancoe, supra; and (3) the participation in
an official capacity as to matters involving a business with which the public official /public
employee is associated in his private capacity (Gorman, Order 1041; Rembold, Order
1303; Wilcox, Order 1306), or private client(s) (Miller, Opinion 89 -024; Kannebecker,
Opinion 92 -010).
If the private employer or business with which the public official /public employee
is associated or a private customer /client would have a matter pending before the
governmental body, generally the public official /public employee would have a conflict of
interest as to such matter. Miller, supra; Kannebecker, supra. A reasonable and
legitimate expectation that a business relationship will form may also support a finding
of a conflict of interest. Amato, Opinion 89 -002.
In each instance of a conflict of interest, a public official /public employee is
required to abstain from participation and to satisfy the disclosure requirements of
Section 1103(j) of the Ethics Act. The abstention requirement is not limited merely to
voting, but extends to any use of authority of office including, but not limited to,
Feese, 08 -565
August 1, 2008
Page 4
discussing, conferring with others, and lobbying for a particular result. Juliante, Order
809.
To the extent the activities of a state legislator relate to "legislative actions"
(introducing, considering, debating, voting, enacting, adopting, or approving legislation),
they are constitutionally controlled and are exempt from the purview of the Ethics Act
and the State Ethics Commission. Confidential Opinion, 05 -009; Confidential Opinion,
05 -003; Confidential Opinion, 05 -002; Confidential Opinion, 04 -010; Corrigan, Opinion
87 -001.
The particular question that you have posed does not pertain to "legislative
actions," but rather, to Representative Mackereth's proposed provision of consulting
services in her private capacity. In promulgating the Ethics Act, the General Assembly
specifically recognized that many public officials, including state legislators, are citizen -
officials and should not be discouraged from maintaining contacts with their community
through their occupations /professions. 65 Pa.C.S. § 1101.1(b). See, e.g., Mann,
Opinion 07 -005; Confidential Opinion, 05 -009, supra. However, pursuant to Section
1103(a) of the Ethics Act, a state legislator may not, in whole or in part, use his /her
public position as a state legislator to solicit business opportunities for himself /herself.
Preston, Opinion 07 -008; Mann, supra; Guloien, Opinion 90 -011. In this regard, a state
legislator would have to exercise diligence and care to ensure that his /her status as a
legislator would not be used in soliciting or obtaining business. Id.
Based upon the submitted facts, you are advised that subject to the restrictions
and qualifications noted above, Section 1103(a) of the Ethics Act would not preclude
Representative Mackereth, in her private capacity, from entering into a consulting
contract with York County to provide services to the York County Human Services
Department until she begins serving as the full -time Executive Director of Human
Services for York County. See, Confidential Opinion, 05 -009, supra; Confidential
Opinion, 05 -002, supra; Confidential Opinion, 04 -010, supra.
The propriety of the proposed conduct has only been addressed under the Ethics
Act. Specifically not addressed herein is the applicability of the Legislative Code of
Conduct.
Conclusion: As a Member of the Pennsylvania House of Representatives
"House of Representatives "), Representative Beverly Mackereth ( "Representative
Mackereth") is a public official subject to the provisions of the Public Official and
Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Subject to the
restrictions and qualifications noted above, Section 1103(a) of the Ethics Act would not
preclude Representative Mackereth, in her private capacity, from entering into a
consulting contract with York County to provide services to the York County Human
Services Department until she begins serving as the full -time Executive Director of
Human Services for York County. 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.
Feese, 08 -565
August 1, 2008
Page 5
Any such appeal must be in writing and must be actually
received at 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.
Sincerely,
Robin M. Hittie
Chief Counsel