HomeMy WebLinkAbout08-589 MenschDear Mr. Rice:
ADVICE OF COUNSEL
David F. Rice, Senior Counsel
House Republican Legal Staff
Pennsylvania House of Representatives
Suite B -6 Main Capitol
P.O. Box 202228
Harrisburg, PA 17120 -2228
October 24, 2008
08 -589
This responds to your letter dated September 18, 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
( "the Member ") of the Pennsylvania House of Representatives with regard to taking an
active role in seeking and lobbying for state grants for an initiative commenced by a
chamber of commerce to assess the social and economic environments in the local
region, where: (1) the Member is a member of the chamber of commerce; (2) the
Member does not serve on the board of directors of the chamber of commerce; (3) the
Member is not an employee of the chamber of commerce; (4) the Member serves as a
member and co -chair of a steering committee formed by the board of directors of the
chamber of commerce to offer guidance and advice to the board of directors with
respect to such initiative; and (5) the Member's service on the steering committee is
voluntary and without remuneration.
Facts: As Senior Counsel with the House Republican Legal Staff of the
Pennsylvania House of Representatives (hereinafter, "House of Representatives "), you
have been authorized by State Representative Bob Mensch ("Representative Mensch")
to request an advisory from the Pennsylvania State Ethics Commission on his behalf,
based upon submitted facts that may be fairly summarized as follows.
Representative Mensch is a subscribing member of the Upper Perkiomen Valley
Chamber of Commerce ( "Chamber "). Representative Mensch does not serve on the
Chamber's Board of Directors ( "the Board of Directors" or "Board "). Representative
Mensch is not an employee of the Chamber.
You state that in early 2007, in response to growth pressures precipitated by
changes in the regional economy and at the urging of Representative Mensch and other
Rice, 08 -589
October 24, 2008
Page 2
public officials, the Chamber commenced an initiative, entitled the "Greater Upper
Perkiomen Valley Community Assessment and Economic Development Plan"
(hereinafter, the Initiative "), to assess the social and economic environments in the
greater Upper Perkiomen Valley. The goal of the Initiative is to identify options and
opportunities for the region to attract measured, deliberate, coordinated growth that will
expand economic opportunity while retaining the quality of life for the region's
inhabitants. The Initiative received funding from contributions from regional businesses,
public and private economic development entities, and local governments, as well as a
grant from the Pennsylvania Department of Community and Economic Development.
You state that the Board of Directors formed a steering committee ( "the Steering
Committee ") to offer guidance and advice to the Board with respect to the Initiative. The
Steering Committee is comprised of approximately fifty individuals representing, inter
alia, regional businesses, municipal governments, economic development entities, state
and municipal officials, planning boards, and the general public. You state that the
Steering Committee's role is strictly advisory, with the Board making all decisions with
respect to the expenditure of Initiative funds and the hiring of necessary staff and
consultants.
Representative Mensch was appointed to the Steering Committee, and he
currently serves as a member and co -chair of the Steering Committee. You state that
Representative Mensch's service on the Steering Committee is voluntary and with no
remuneration.
Based upon the above submitted facts, you ask whether the Ethics Act would
preclude Representative Mensch from taking an active role in seeking and lobbying for
state grants for the Initiative.
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 Mensch is a
public official subject to the provisions of the Ethics Act. See, e.q., Corey, Opinion 08-
005; Boback, Opinion 08 -002; Feese, Opinion 07 -015.
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
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October 24, 2008
Page 3
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 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.
"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.
Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is
prohibited from using the authority of public office /employment or confidential
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October 24, 2008
Page 4
information received by holding such a public position for the private pecuniary benefit
of the public official /public employee himself, 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 voting conflict, Section 1103(j) of the Ethics Act requires the
public official /public employee to abstain and to publicly disclose the abstention and
reasons for same, both orally and by filing a written memorandum to that effect with the
person recording the minutes. In the event that the required abstention results in the
inability of the governmental body to take action because a majority is unattainable due
to the abstention(s) from conflict under the Ethics Act, then voting is permissible
provided the disclosure requirements noted above are followed. See, Pavlovic, Opinion
02 -005.
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.
In applying the above provisions of the Ethics Act to the instant matter, there is
no basis in the submitted facts for concluding that the Chamber is a business with which
Representative Mensch is associated, as that term is defined by the Ethics Act.
Based upon the submitted facts, Section 1103(a) of the Ethics Act would not
preclude Representative Mensch from taking an active role in seeking or lobbying for
state grants for the Initiative.
Act.
The propriety of the proposed conduct has only been addressed under the Ethics
Conclusion: As a Member of the Pennsylvania House of Representatives,
Representative Bob Mensch ( "Representative Mensch ") 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. Based upon the submitted facts that: (1) Representative Mensch is a
subscribing member of the Upper Perkiomen Valley Chamber of Commerce
("Chamber'); (2) Representative Mensch does not serve on the Chamber's Board of
Directors ( "the Board of Directors" or "Board "); (3) Representative Mensch is not an
employee of the Chamber; (4) in early 2007, the Chamber commenced an initiative,
entitled the "Greater Upper Perkiomen Valley Community Assessment and Economic
Development Plan" (hereinafter, the Initiative"), to assess the social and economic
environments in the greater Upper Perkiomen alley; (5) the Initiative received funding
from contributions from regional businesses, public and private economic development
entities, and local governments, as well as a grant from the Pennsylvania Department artment of
Community and Economic Development; (6) the Board of Directors formed steering
committee ("the Steering Committee ") to offer guidance and advice to the Board with
respect to the Initiative; (7) the Steering Committee's role is strictly advisory, with the
Board making all decisions with respect to the expenditure of Initiative funds and the
hiring of necessary staff and consultants; (8) Representative Mensch was appointed to
the Steering Committee and currently serves as a member and co -chair of the Steering
Committee; and (9) Representative Mensch's service on the Steering Committee is
voluntary and with no remuneration, you are advised as follows. There is no basis in
the submitted facts for concluding that the Chamber is a business with which
Representative Mensch is associated, as that term is defined by the Ethics Act. Based
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October 24, 2008
Page 5
upon the submitted facts, Section 1103(a) of the Ethics Act would not preclude
Representative Mensch from taking an active role in seeking or lobbying for state grants
for the Initiative.
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.
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
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