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HomeMy WebLinkAbout10-560 Confidential ADVICE OF COUNSEL March 30, 2010 10-560 This responds to your letter dated February 8, 2010, by which you requested a confidential advisory from the Pennsylvania State Ethics Commission. Issue: Whether, pursuant to the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. §1101 et seq., a state legislator would be permitted to provide, either directly or through district office staff, information to constituent(s) regarding a certain project of a nonprofit corporation for which the state legislator serves as a board member. Facts: You have been authorized to request a confidential advisory from the Pennsylvania State Ethics Commission on behalf of State Legislator A, hereinafter referred to as “the State Legislator.” You have submitted facts, the material portion of which may be fairly summarized as follows. The State Legislator is a board member of a nonprofit corporation known as [name of nonprofit corporation], hereinafter referred to as “the Nonprofit.” The primary project of the Nonprofit is known as [name of project], hereinafter referred to as “the Project.” The Project involves [type of effort by various individuals and entities]. The narrow question that you have posed is whether the State Legislator would be permitted to provide, either directly or through district office staff, information regarding the Project to constituent(s) who come into the State Legislator’s office and do not have B. 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 Advice is limited to addressing the narrow question posed. The State Legislator is a public official as that term is defined by the Ethics Act, and therefore the State Legislator is subject to the provisions of the Ethics Act. Confidential Advice, 10-560 March 30, 2010 Page 2 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 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. Confidential Advice, 10-560 March 30, 2010 Page 3 "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. As to state legislators specifically, 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. See, Corrigan, Opinion 87-001. Thus, Section 1103(a) of the Ethics Act would not apply to the State Legislator insofar as his activities would constitute legislative actions. In addressing your specific question, you are advised as follows. The Nonprofit is a business with which the State Legislator is associated as a board member. See, Rendell v. State Ethics Commission, Pa. , 983 A.2d 708 (2009). The question that you have posed does not pertain to “legislative actions.” The submitted facts do not indicate whether the proposed action of providing information to constituent(s) regarding the Project would result in a pecuniary benefit that would be contrary to Section 1103(a) of the Ethics Act. Therefore, based upon the submitted facts, you are advised that pursuant to Section 1103(a) of the Ethics Act, the State Legislator would not be prohibited from providing, either directly or through district office staff, information regarding the Project to constituent(s) who come into the State Legislator’s office and do not have B, subject to the condition that such actions would not result in a pecuniary benefit to the State Legislator, a member of his immediate family, or a business with which the State Legislator or a member of his immediate family is associated such as the Nonprofit. 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. Conclusion: As a state legislator, State Legislator A, hereinafter referred to 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. Based upon the submitted facts that: (1) the State Legislator is a board member of a nonprofit corporation known as [name of nonprofit corporation], hereinafter referred to as “the Nonprofit”; (2) the primary project of the Nonprofit is known as [name of project], hereinafter referred to as “the Project”; and (3) the Project involves [type of effort by Confidential Advice, 10-560 March 30, 2010 Page 4 various individuals and entities], you are advised as follows. Pursuant to Section 1103(a) of the Ethics Act, the State Legislator would not be prohibited from providing, either directly or through district office staff, information regarding the Project to constituent(s) who come into the State Legislator’s office and do not have B, subject to the condition that such actions would not result in a pecuniary benefit to the State Legislator, a member of his immediate family, or a business with which the State Legislator or a member of his immediate family is associated such as the Nonprofit. 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