HomeMy WebLinkAbout09-573 ConfidentialADVICE OF COUNSEL
October 1, 2009
09 -573
This responds to your letter dated August 18, 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. .S. § 1101 et seq., would present any prohibitions or restrictions upon the A for
Commonwealth Ufficial B with regard to [engaging in a certain activity] in his private
capacity with or in: (1) Cs or Ds that are currently E in or F by Commonwealth
Department G (hereinafter the Department "); or (2) Cs or Ds that are not currently E in
or F by the Department but may be considered for future use by the Department.
Facts: As Chief Counsel of the Department, you request a confidential advisory
from the Pennsylvania State Ethics Commission on behalf of Individual H, who is
employed as the A for Commonwealth Official B. You have submitted facts that may be
fairly summarized as follows.
Individual H is considering [engaging in a certain activity] in his private capacity
with or in: (1) Cs or Ds that are currently E in or F by the Department; or (2) Cs or Ds
that are not currently E in or F by the Department but may be considered for future use
by the Department. You state that Individual H would not [perform a certain activity
exceeding a certain limit]. You state that Individual H would not hold any position with
the Cs or Ds, and he would not serve with the Cs or Ds in any capacity such as director,
advisor, or employee.
You state that it is anticipated the Department would [take certain actions]. You
state that [certain events would not occur].
You state that with regard to all actual and /or potential Is, Individual H would
comply with all disclosure requirements dictated by the Ethics Act, the J, and any state
or federal entity. You further state that Individual H would recuse himself from any
conflict of interest concerning his Is and would follow the Department's procedures for
doing so.
The narrow question that you pose is whether the Ethics Act would permit
Individual H in his private capacity to [engage in a certain activity] with or in: (1) Cs or
Ds that are currently E in or F by the Department; or (2) Cs or Ds that are not currently
E in or F by the Department but may be considered for future use by the Department.
Confidential Advice, 09 -573
October 1, 2009
Page 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.
It is further initially noted that this advisory is limited to addressing the narrow
question that you have posed.
Preliminarily, it is noted that the submitted facts do not include an official position
description for Individual H's position as A for Commonwealth Official B. This advice
assumes, without deciding, that in his capacity as A for Commonwealth Official B,
Individual H is a public employee subject to 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 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
Confidential Advice, 09 -573
October 1, 2009
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.
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. The abstention requirement would not be
limited merely to voting, but would extend 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.
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.
In applying the above provisions of the Ethics Act to the instant matter, it is noted
that Section 1103(a) of the Ethics Act does not prohibit public officials /public employees
from having outside business activities or employment; however, the public
official /public employee may not use the authority of his public position - -or confidential
information obtained by being in that position - -for the advancement of his own private
pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion
89 -011. 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.
Confidential Advice, 09 -573
October 1, 2009
Page 4
Sections 1103(b) and 1103(c) of the Ethics Act, pertaining to improper influence,
provide as follows:
§ 1103. Restricted activities
(b) Seeking improper influence. —No person shall
offer or give to a public official, public employee or nominee
or candidate for public office or a member of his immediate
family or a business with which he is associated, anything of
monetary value, including a gift, loan, political contribution,
reward or promise of future employment based on the
offeror's or donor's understanding that the vote, official
action or judgment of the public official or public employee or
nominee or candidate for public office would be influenced
thereby.
(c) Accepting improper influence. —No public
official, public employee or nominee or candidate for public
office shall solicit or accept anything of monetary value,
including a gift, loan, political contribution, reward or promise
of future employment, based on any understanding of that
public official, public employee or nominee that the vote,
official action or judgment of the public official or public
employee or nominee or candidate for public office would be
influenced thereby.
65 Pa.C.S. §§ 1103(b), (c).
The term "person" is defined in the Ethics Act as follows:
§ 1102. Definitions
"Person." A business, governmental body,
individual, corporation, union, association, firm, partnership,
committee, club or other organization or group of persons.
65 Pa.C.S. § 1102.
Sections 1103(b) and 1103(c) of the Ethics Act, pertaining to improper influence,
provide in part that no person shall offer or give to a public official /public employee
anything of monetary value and no public official /public employee shall solicit or accept
anything of monetary value based upon the understanding that the vote, official action,
or judgment of the public official /public employee would be influenced thereby. 65
Pa.C.S. §§ 1103(b), (c). Reference is made to these provisions of the law not to imply
that there has been or will be any transgression thereof but merely to provide a
complete response to the question presented.
Having established the above general principles, you are advised as follows.
Section 1103(a) of the Ethics Act does not operate to restrict the conduct of a
public official /public employee in his private capacity. Rather, Section 1103(a) of the
Ethics Act regulates the conduct of a public official /public employee in his public
capacity. For example, pursuant to Section 1103(a) of the Ethics Act, Individual H
would be prohibited from using confidential information obtained by being in his public
position in furtherance of personal Is.
Subject to the condition that in his public capacity as A for Commonwealth
Official B, Individual H would comply with the restrictions and requirements of Sections
Confidential Advice, 09 -573
October 1, 2009
Page 5
1103(a), 1103(b)/1103(c), and 1103(j) of the Ethics Act as set forth above, the Ethics
Act itself would not prohibit Individual H in his private capacity from [engaging in a
certain activity] with or in: (1) Cs or Ds that are currently E in or F by the Department; or
(2) Cs or Ds that are not currently E in or F by the Department but may be considered
for future use by the Department.
The propriety of the proposed conduct has only been addressed under the Ethics
Act; the applicability of any other statute, code, ordinance, regulation or other code of
conduct other than the Ethics Act has not been considered in that they do not involve an
interpretation of the Ethics Act. Specifically not addressed herein is the applicability of
the J.
Conclusion: This advice assumes, without deciding, that in his capacity as A for
Commonwealth Official B, Individual H is a public employee subject to the provisions of
the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq.
Subject to the condition that in his public capacity as A for Commonwealth Official B,
Individual H would comply with the restrictions and requirements of Sections 1103(a),
1103(b)/1103(c), and 1103(j) of the Ethics Act, the Ethics Act itself would not prohibit
Individual H in his private capacity from [engaging in a certain activity] with or in: (1) Cs
or Ds that are currently E in or F by Commonwealth Department G ("the Department ");
or (2) Cs or Ds that are not currently E in or F by the Department but may be considered
for future use by the Department. 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