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HomeMy WebLinkAbout10-628 Corey ADVICE OF COUNSEL December 13, 2010 Rodney A. Corey, Chief Counsel House Republican Legal Staff Pennsylvania House of Representatives Suite B-6 Main Capitol P.O. Box 202228 Harrisburg, PA 17120-2228 10-628 Dear Mr. Corey: This responds to your letter dated October 28, 2010, 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.C.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 grants for a Pennsylvania non-profit corporation (“Corporation”) if the Member would be appointed to serve on a voluntary basis and without a stipend on an advisory council of the Corporation; and whether the Member would be required to disclose the Corporation on his annual Statement of Financial Interests if he would be appointed to the aforesaid advisory council. Facts: You have been authorized to request an advisory from the Pennsylvania State Ethics Commission on behalf of Representative Will Tallman (“Representative Tallman”). You have submitted facts, the material portion of which may be fairly summarized as follows. A Pennsylvania non-profit corporation named “Emergency Health Services Federation, Inc.” (“the Federation”) has asked Representative Tallman to serve on the Federation’s Advisory Council (“Advisory Council”). You have submitted copies of the Federation’s by-laws and materials describing the functions of the Federation’s Board of Directors and the Advisory Council, which documents are incorporated herein by reference. It is noted that the Federation by-laws provide, in pertinent part, as follows: ARTICLE VII – THE ADVISORY COUNCIL Section 7.01 – Establishment and Purposes: The Board of Directors shall appoint the Advisory Council (Council) consisting of not less than seventeen (17) persons and not more than twenty-five (25) persons. The composition Corey, 10-628 December 13, 2010 Page 2 of the Advisory Council shall be such as to include the Executive Director and no more than three persons from each county in the region. . . . The Advisory Council shall have as its primary function advising and guiding the Board of Directors and the Executive Director in matters relating to those functions of the Federation as the regional emergency medical services council. The Advisory Council shall also perform such other functions as the Board of Directors may from time to time request. The Council members shall not be deemed to stand in a direct fiduciary relationship regarding the affairs of the Federation. Emergency Health Services Federation, Inc. By-laws, at 6. The Advisory Council focuses on operational issues facing the region, such as protocols, new treatments, and the like. The Advisory Council does not have any binding authority and makes recommendations to the Board of Directors. If Representative Tallman would be approved to serve on the Advisory Council by the Board of Directors, he would be appointed to fill an interim seat until June 30, 2011. Representative Tallman would not serve as an officer of the Advisory Council, and he would not be considered an employee of the Federation. Representative Tallman’s service on the Advisory Council would be voluntary, and he would not receive any stipend for such service. Based upon the above submitted facts, you pose the following questions: (1) If Representative Tallman would be appointed to the Advisory Council, whether the Federation would be a business with which he is associated for the purposes of the Ethics Act; (2) Whether the Ethics Act would permit Representative Tallman to take an active role in seeking and lobbying for grants for the Federation if he would be appointed to the Advisory Council; and (3) If Representative Tallman would be appointed to the Advisory Council, whether he would be required to disclose the Federation on his annual Statement of Financial Interests (“SFI”) and if so, in what block(s). 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 Pennsylvania House of Representatives, Representative Tallman is a public official subject to the provisions of the Ethics Act. See, e.g., 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. Corey, 10-628 December 13, 2010 Page 3 (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 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. Corey, 10-628 December 13, 2010 Page 4 "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. 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 conflict of interest, a public official/public employee would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. However, 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. Preston, Opinion 07-008; Mann, Opinion 07-005; Corrigan, Opinion 87-001. Having established the above general principles, your specific questions are addressed as follows. In response to your first question, you are advised that there is no basis in the submitted facts for concluding that the Federation would be a business with which Representative Tallman is associated--as that term is defined by the Ethics Act--if he would be appointed to the Advisory Council. Cf., Rice, Advice 08-589. Specifically, the submitted facts do not indicate that by serving on the Advisory Council, Representative Tallman would be a director, officer, owner or employee of the Federation or would have any financial interest in the Federation. In response to your second question, you are advised that based upon the submitted facts, Section 1103(a) of the Ethics Act would not preclude Representative Tallman from taking an active role in seeking or lobbying for grants for the Federation if he would be appointed to serve on the Advisory Council. As to your third question, you are advised that based upon the submitted facts, Representative Tallman would not be required to disclose the Federation on his annual SFI. The propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: As a Member of the Pennsylvania House of Representatives, Representative Will Tallman (“Representative Tallman”) 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) a Pennsylvania non-profit corporation named “Emergency Health Services Federation, Inc.” (“the Federation”) has Corey, 10-628 December 13, 2010 Page 5 asked Representative Tallman to serve on the Federation’s Advisory Council (“Advisory Council”); (2) the Advisory Council does not have any binding authority and makes recommendations to the Board of Directors; (3) if Representative Tallman would be approved to serve on the Advisory Council by the Board of Directors, he would be appointed to fill an interim seat until June 30, 2011; (4) Representative Tallman would not serve as an officer of the Advisory Council, and he would not be considered an employee of the Federation; and (5) Representative Tallman’s service on the Advisory Council would be voluntary, and he would not receive any stipend for such service, you are advised as follows. There is no basis in the submitted facts for concluding that the Federation would be a business with which Representative Tallman is associated--as that term is defined by the Ethics Act--if he would be appointed to the Advisory Council. Based upon the submitted facts, if Representative Tallman would be appointed to serve on the Advisory Council, Section 1103(a) of the Ethics Act would not preclude him from taking an active role in seeking or lobbying for grants for the Federation, and he would not be required to disclose the Federation on his annual Statement of Financial Interests. 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