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HomeMy WebLinkAbout09-513 ConfidentialADVICE OF COUNSEL February 27, 2009 The C that governs Entity D will be replaced by an H after [date]. 09 -513 This responds to your letters dated December 19, 2008, and January 14, 2009, by which you requested a confidential advisory from the Pennsylvania State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., would prohibit a state legislator from simultaneously serving in a compensated position as the A of a [type of entity] created by a political subdivision and located in the state legislator's district; and what role, if any, would the state legislator be permitted to play in obtaining state funds for such [entity]. Facts: You have been authorized by a Member of the Pennsylvania [chamber of the General Assembly] (hereinafter also referred to as the State Legislator ") to request a confidential advisory from the Pennsylvania State Ethics Commission on his /her behalf. You have submitted facts that may be fairly summarized as follows. In addition to serving as a Member of the Pennsylvania chamber of the General Assembly], the State Legislator also currently serves as B of a that governs a [type of entity] (hereinafter referred to as "Entity D ") located in the State Legislator's district. Entity D was created by an ordinance of [name of political subdivision] (hereinafter referred to as "Political Subdivision E "). You have submitted a copy of Political Subdivision E's F. The C that currently governs Entity D was created by an ordinance, which provides, in part, as follows: [quote and cite]. You state that although Entity D is authorized to receive and expend funds that may be appropriated by Political Subdivision E or by the Commonwealth or its departments or agencies, Entity D has not yet received any funds from the Commonwealth. Entity D's only source of funding has been its share of a G. Confidential Advice, 09 -513 February 27, 2009 Page 2 The State Legislator might be offered a compensated position as the A of Entity D. You state that while serving as the A of Entity D, the State Legislator would not remain on the I that governs Entity D but would remain a state legislator. Based upon the above submitted facts, you pose the following specific questions: 1. Whether the Ethics Act would permit the State Legislator to accept a paid position as the A of Entity D; 2. Whether the answer to your first question would be different if Entity D would accept state funds at some point in the future; and 3. What role, if any, would the Ethics Act permit the State Legislator to have in obtaining state funds for Entity D. 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. Both as a state legislator and as a member and B of the C that governs Entity D, the individual who is the subject of this advisory is a public official subject to the provisions of the Ethics Act. 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 Confidential Advice, 09 -513 February 27, 2009 Page 3 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 pertaining to conflicts of interest under the Ethics Act are defined 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. "Political subdivision." Any county, city, borough, incorporated town, township, school district, vocational school, county institution district, and any authority, entity or body organized by the aforementioned. 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 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. In each instance of a conflict of interest, the public official /public employee would be required to abstain fully from participation in his official capacity. Subject to certain statutory exceptions, 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. Section 1103(f) of the Ethics Act provides as follows: Confidential Advice, 09 -513 February 27, 2009 Page 4 § 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 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). 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(g) of the Ethics Act is a "revolving door" provision, which provides: § 1103. Restricted activities (g) Former official or employee. - -No former public official or public employee shall represent a person, with promised or actual compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 Pa.C.S. § 1103(g). In response to your first specific question, you are advised that there does not appear to be any statutorily - declared incompatibility (Pa. Const. Art. 6, § 2) or inherent conflict (see, McCain, Opinion 02 -009) precluding simultaneous service as a state legislator and A of Entity D. Consequently, the Ethics Act would not prohibit the State Legislator from simultaneously serving in the positions of state legislator and A of Entity D within the parameters of Sections 1103(a) and 1103(j) of the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, the State Legislator generally would be prohibited from using the authority of his aforesaid public office(s), or confidential information received by holding his aforesaid public office(s), in furtherance of securing a compensated position as the A of Entity D. Confidential Advice, 09 -513 February 27, 2009 Page 5 Although the submitted facts do not indicate whether there would be a hiatus between the State Legislator's service as a member of the I that governs Entity D and as A of Entity D, you are advised that to the extent the post- termination restrictions of Section 1103(g) of the Ethics Act would become applicable, such restrictions would not prohibit the State Legislator from being hired as A of Entity D provided that a true public employment relationship would exist. See, e.q., McGlathery, Opinion 00 -004; Long, Opinion 97 -010; Confidential Opinion, 93 -005; Weinheimer, Advice 05 -507. The requirements and restrictions of Section 1103(f) of the Ethics Act would have to be observed as to the hiring of the State Legislator as A of Entity D if the value of such employment contract would be $500 or more and the State Legislator would be serving as a member of the I governing Entity D when such contracting would occur. In response to your second specific question, you are advised that based upon the submitted facts, the above answer to your first specific question would not change if Entity D would accept state funds at some point in the future. In response to your third specific question, it is initially noted that 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. Mann, Opinion 07 -005; Confidential Opinion, 05 -009; Confidential Opinion, 05 -003; Confidential Opinion, 05 -002; Confidential Opinion, 04 -010; Corrigan, Opinion 87- 001. Thus, Section 1103(a) of the Ethics Act would not apply as to legislative actions. As for other types of actions, you are advised that generally, the State Legislator would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in obtaining state funds for Entity D. Entity D is a "political subdivision" as that term is defined by the Ethics Act. 65 Pa.C.S. § 1102. It is governmental, not private, in nature. Absent a private pecuniary benefit to the State Legislator, a member of the State Legislator's immediate family, or a business with which the State Legislator or an immediate family member is associated, the State Legislator would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in obtaining state funds for Entity D. Cf., Confidential Opinion, 01 -005; McCarrier, Opinion 98 -008; Warso, Order 974. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of Political Subdivision E's F, which includes political activity restrictions as to municipal employees. Conclusion: Both as a state legislator and as a member and B of the C that governs the [type of entity] (hereinafter referred to as "Entity D ") created by [name of political subdivision] (hereinafter referred to as "Political Subdivision E "), the individual who is the subject of this advisory (also referred to herein as the State Legislator ") 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. Under the submitted facts that: (1) Entity D is authorized to receive and expend funds that may be appropriated by Political Subdivision E or by the Commonwealth or its departments or agencies; (2) Entity D has not yet received any funds from the Commonwealth; (3) the C that governs Entity D will be replaced by an H after [date]; (4) the State Legislator might be offered a compensated position as the A of Entity D; and (5) the State Legislator would not remain on the I that governs Entity D while serving as the A of Entity D but would remain a state legislator, you are advised as follows. Confidential Advice, 09 -513 February 27, 2009 Page 6 Regardless of whether Entity D would accept state funds at some point in the future, the Ethics Act would not prohibit the State Legislator from simultaneously serving in the positions of state legislator and A of Entity D, within the parameters of Sections 1103(a) and 1103(j) of the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, the State Legislator generally would be prohibited from using the authority of his aforesaid public office(s), or confidential information received by holding his aforesaid public office(s), in furtherance of securing a compensated position as the A of Entity D. To the extent the post- termination restrictions of Section 1103(g) of the Ethics Act would become applicable, such restrictions would not prohibit the State Legislator from being hired as A of Entity D provided that a true public employment relationship would exist. The requirements and restrictions of Section 1103(f) of the Ethics Act would have to be observed when applicable. Entity D is a "political subdivision" as that term is defined by the Ethics Act. Absent a private pecuniary benefit to the State Legislator, a member of the State Legislator's immediate family, or a business with which the State Legislator or an immediate family member is associated, the State Legislator would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in obtaining state funds for Entity D. Section 1103(a) of the Ethics Act would not apply as to "legislative actions" (introducing, considering, debating, voting, enacting, adopting, or approving legislation). Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, this 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