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Home My WebLink About10-558 Confidential ADVICE OF COUNSEL March 26, 2010 10-558 This responds to your letter dated February 1, 2010, 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 require a state legislator to disclose on his/her Statement of Financial Interests as a gift an A that the state legislator received from a constituent: (1) whom the state legislator has known for [number] years; and (2) who is not a registered lobbyist or principal as those terms are defined by Pennsylvania’s lobbying disclosure law (“Lobbying Disclosure Law”), 65 Pa.C.S. § 13A01 et seq. Facts: You request a confidential advisory from the Pennsylvania State Ethics Commission on behalf of a Member of the Pennsylvania [chamber of the General Assembly] (hereinafter also referred to as “the State Legislator”). You have submitted facts that may be fairly summarized as follows. You state that the State Legislator received an A from a constituent (“the Constituent”) as a gift. The State Legislator has known the Constituent, who is a semi- retired B, for [number] years. You state that the Constituent is not a registered lobbyist or principal as those terms are defined by the Lobbying Disclosure Law. You further state that the value of the A is unknown. Based upon the above submitted facts, you ask whether the State Legislator would be required to report the A as a gift on his/her Statement of Financial Interests. 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. The State Legislator is a public official subject to the provisions of the Ethics Act and specifically the financial disclosure requirements of Sections 1104 and 1105 of the Ethics Act. Confidential Advice, 10-558 March 26, 2010 Page 2 Section 1104(a) of the Ethics Act provides that each public official/public employee must file a Statement of Financial Interests for the preceding calendar year, each year that he holds the position and the year after he leaves it. Subject to a statutory exclusion that is hereinafter referred to as “the family member/friend exclusion,” Section 1105(b)(6) of the Ethics Act requires the filer to disclose on the Statement of Financial Interests the name and address of the source and the amount of any gift or gifts valued in the aggregate at $250 or more and the circumstances of each gift: § 1105. Statement of financial interests (b) Required information.-- The statement shall include the following information for the prior calendar year with regard to the person required to file the statement: (6) The name and address of the source and the amount of any gift or gifts valued in the aggregate at $250 or more and the circumstances of each gift. This paragraph shall not apply to a gift or gifts received from a spouse, parent, parent by marriage, sibling, child, grandchild, other family member or friend when the circumstances make it clear that the motivation for the action was a personal or family relationship. However, for the purposes of this paragraph, the term "friend" shall not include a registered lobbyist or an employee of a registered lobbyist. 65 Pa.C.S. § 1105(b)(6). The following criteria must be met in order for the family member/friend exclusion to be applicable: (1) the donor of the gift(s) must be a family member or friend of the recipient public official/public employee; (2) to qualify as a “friend,” the donor of the gift(s) may not be a registered lobbyist or an employee of a registered lobbyist; and (3) the circumstances must clearly establish that the motivation for the gift(s) was a personal or family relationship. The Ethics Act defines the term “gift” as that term is defined in Section 13A03 of the Lobbying Disclosure Law: § 13A03. Definitions. "Gift." Anything which is received without consideration of equal or greater value. The term shall not include a political contribution otherwise reportable as required by law or a commercially reasonable loan made in the ordinary course of business. The term shall not include hospitality, transportation or lodging. 65 Pa.C.S. § 13A03; see, 65 Pa.C.S. § 1102. Confidential Advice, 10-558 March 26, 2010 Page 3 In the instant matter, the submitted facts do not disclose the value of the A, whether the State Legislator and Constituent are family members or friends, or the motivation for the gift of the A. Therefore, based upon the submitted facts, you are advised that if: (1) the A and any other gift(s) received by the State Legislator from the Constituent during the same calendar year would be valued in the aggregate at $250 or more; and (2) the criteria for applying the family member/friend exclusion of Section 1105(b)(6) of the Ethics Act would not be met, the State Legislator would be required to disclose such gift(s) on his/her Statement of Financial Interests. Such disclosure would have to include the name and address of the Constituent, the amount of any gift or gifts received from the Constituent, and the circumstances of each gift. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: As a state legislator, 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 .,and specifically the financial disclosure requirements of Sections 1104 and 1105 of the Ethics Act. Under the submitted facts that: (1) the State Legislator received an A from a constituent (“the Constituent”) as a gift; (2) the State Legislator has known the Constituent, who is a semi-retired B, for [number] years; (3) the Constituent is not a registered lobbyist or principal as those terms are defined by Pennsylvania’s lobbying disclosure law (“Lobbying Disclosure Law”), 65 Pa.C.S. § 13A01 et seq.; and (4) the value of the A is unknown, you are advised as follows. Subject to a statutory exclusion that is hereinafter referred to as “the family member/friend exclusion,” Section 1105(b)(6) of the Ethics Act requires the filer to disclose on the Statement of Financial Interests the name and address of the source and the amount of any gift or gifts valued in the aggregate at $250 or more and the circumstances of each gift. The following criteria must be met in order for the family member/friend exclusion to be applicable: (1) the donor of the gift(s) must be a family member or friend of the recipient public official/public employee; (2) to qualify as a “friend,” the donor of the gift(s) may not be a registered lobbyist or an employee of a registered lobbyist; and (3) the circumstances must clearly establish that the motivation for the gift(s) was a personal or family relationship. Under the submitted facts, if: (1) the A and any other gift(s) received by the State Legislator from the Constituent during the same calendar year would be valued in the aggregate at $250 or more; and (2) the criteria for applying the family member/friend exclusion of Section 1105(b)(6) of the Ethics Act would not be met, the State Legislator would be required to disclose such gift(s) on his/her Statement of Financial Interests. Such disclosure would have to include the name and address of the Constituent, the amount of any gift or gifts received from the Constituent, and the circumstances of each gift. The propriety of the proposed 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. Confidential Advice, 10-558 March 26, 2010 Page 4 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