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HomeMy WebLinkAbout12-549 Petrille ADVICE OF COUNSEL June 21, 2012 Donald Petrille, Jr., Esquire 475 Buchanan Road Perkasie, PA 18944 12-549 Dear Mr. Petrille: This responds to your letters dated April 16, 2012, and May 24, 2012, 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 prohibit an individual who serves as the register of wills for a county from having his campaign committee hold a fundraiser at which participants who are attorneys may receive continuing legal education credit. Facts: You request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. You are the Register of Wills for Bucks County (“County”), Pennsylvania. You are also a practicing attorney. You have an authorized campaign committee known as “Friends of Don Petrille” (“Campaign Committee”). The Campaign Committee wishes to hold a fundraiser (“Fundraiser”) at which participants who are attorneys may receive continuing legal education (“CLE”) credit. You state that it is envisioned that any CLE event would clearly advertise the number of credits an attorney would gain and that the CLE event would be approved in advance by the Pennsylvania Continuing Legal Education Board (“CLE Board”). The ticket price for a CLE event would be set to cover mandated costs/fees required by the CLE Board, the cost of food and drink for a meal included with the CLE event, and a per person profit of approximately $25 to $50. You state that the average price to attend a CLE event would be competitive with other commercial CLE providers and would be between $50 and $100. You further state that all donations and tickets would be subject to Pennsylvania campaign finance rules and regulations. You state that you do not intend to present at any CLE event which the Campaign Committee would organize and sponsor and that no employee of your office would present at such an event. All presenters would be licensed attorneys who are qualified to teach subject matter in their areas of expertise. Petrille, 12-549 June 21, 2012 Page 2 You state that no County supplies, equipment, facilities or personnel would be used for the Fundraiser and that all activities, including preparation, planning, and presentation of the Fundraiser, would be conducted outside of County business hours. You further state that you would not use any confidential information obtained in the day-to-day course of executing the office of Register of Wills in helping the Campaign Committee plan the Fundraiser. Based upon the above submitted facts, you ask whether the holding of the Fundraiser would be allowed under current law. 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 the Register of Wills for Bucks County, you are 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 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). Petrille, 12-549 June 21, 2012 Page 3 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. 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 applying Section 1103(a) of the Ethics Act to your inquiry, it is noted that the use of government staff, time, equipment, facilities, or property for non-governmental purposes—including business, personal, or political purposes—is generally prohibited and may form the basis for a violation of Section 1103(a) of the Ethics Act. See, e.g., Confidential Opinion, 05-001; Heck, Order 1251, Holt, Order 1153 (business purposes); Moore, Order 1317, Meduka, Order 1277, Sullivan, Order 1245, Dovidio, Order 1202 (personal purposes); Habay, Order 1313, Livingston, Order 1030, Rockefeller, Order 1004, Freind, Order 800 (political purposes). The State Ethics Commission has long held that government offices, facilities, equipment, and personnel are to be used for governmental purposes and not for private, business or campaign/re-election activities. See, Smythe, Order 1121; Rakowsky, Order 943; Eck, Order 787; Freind, supra; Ferlo, Opinion 97-005. Sections 1103(b) and 1103(c) of the Ethics Act, 65 Pa.C.S. §§ 1103(b), (c), provide in part that no person shall offer or give to a public official/public employee or candidate anything of monetary value and no public official/public employee or candidate 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 or candidate would be influenced thereby. 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. Petrille, 12-549 June 21, 2012 Page 4 Based upon the facts that you have submitted, the Ethics Act would not prohibit you from having the Campaign Committee hold the Fundraiser as delineated above, subject to the condition that in your public position as the Register of Wills, you would comply with all applicable provisions of Section 1103 of the Ethics Act. 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 the Register of Wills for Bucks County (“County”), Pennsylvania, you are 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) you are a practicing attorney; (2) you have an authorized campaign committee known as “Friends of Don Petrille” (“Campaign Committee”); (3) the Campaign Committee wishes to hold a fundraiser (“Fundraiser”) at which participants who are attorneys may receive continuing legal education (“CLE”) credit; (4) any CLE event would be approved in advance by the Pennsylvania Continuing Legal Education Board (“CLE Board”); (5) the ticket price for a CLE event would be set to cover mandated costs/fees required by the CLE Board, the cost of food and drink for a meal included with the CLE event, and a per person profit of approximately $25 to $50; (6) the average price to attend a CLE event would be competitive with other commercial CLE providers and would be between $50 and $100; (7) all donations and tickets would be subject to Pennsylvania campaign finance rules and regulations; (8) you do not intend to present at any CLE event which the Campaign Committee would organize and sponsor, and no employee of your office would present at such an event; (9) no County supplies, equipment, facilities or personnel would be used for the Fundraiser, and all activities, including preparation, planning, and presentation of the Fundraiser, would be conducted outside of County business hours; and (10) you would not use any confidential information obtained in the day-to-day course of executing the office of Register of Wills in helping the Campaign Committee plan the Fundraiser, you are advised that the Ethics Act would not prohibit you from having the Campaign Committee hold the Fundraiser as delineated above, subject to the condition that in your public position as the Register of Wills, you would comply with all applicable provisions of Section 1103 of the Ethics Act. 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 Petrille, 12-549 June 21, 2012 Page 5 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