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HomeMy WebLinkAbout13-566 ADVICE OF COUNSEL October 7, 2013 13-566 This responds to your letter dated August 16, 2013, 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 impose any prohibitions or restrictions upon an individual employed as an A for Commonwealth Agency B with regard to accepting a prize valued at less than $100 that was awarded to the individual as a result of participating in a [type of contest] included in an email sent to the individual’s Commonwealth email account by a [type of vendor]. Facts: You request a confidential advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. You are employed as an A with Commonwealth Agency B. You have submitted a copy of your official Commonwealth position description, which document is incorporated herein by reference. A copy of the job classification specifications for the position of A (job code [number]) has been obtained and is also incorporated herein by reference. In your capacity as an employee of Commonwealth Agency B, you receive regular email newsletters sent to your Commonwealth email account from a [type of vendor] (the “Vendor”). You state that your job duties are unrelated to the services provided by the Vendor and that your job duties do not involve any contracting with, or regulation or oversight of, the Vendor or any similar vendor. One email that you received from the Vendor included a [type of contest] (the “Contest”) which awarded multiple prizes. You correctly [performed a certain activity] and were awarded one of the Contest prizes (the “Prize”). You express your understanding from your own limited research that the Prize is valued at less than $100. Based upon the above submitted facts, you ask whether the Ethics Act would permit you to accept the Prize. 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 Confidential Advice, 13-566 October 7, 2013 Page 2 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 an A for Commonwealth Agency B, you are a public employee subject to the provisions of the Ethics Act. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. This conclusion is based upon the position description and the job classification specifications, which when reviewed on an objective basis, indicate clearly that the power exists to take or recommend official action of a non-ministerial nature with respect to one or more of the following: contracting; procurement; administering or monitoring grants or subsidies; planning or zoning; inspecting; licensing; regulating; auditing; or other activity(ies) where the economic impact is greater than de minimis on the interests of another person. Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities (a)Conflict of interest.-- No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). 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. The use of Confidential Advice, 13-566 October 7, 2013 Page 3 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. It is noted that the above statutory definition of the term “conflict” or “conflict of interest” contains, in pertinent part, an exclusion referred to herein as the “de minimis exclusion.” The de minimis exclusion precludes a finding of conflict of interest as to an action having a de minimis (insignificant) economic impact. Thus, when a matter that would otherwise constitute a conflict of interest under the Ethics Act would have an insignificant economic impact, a conflict would not exist and Section 1103(a) of the Ethics Act would not be implicated. See, Kolb, Order 1322; Schweinsburg, Order 900. The Commission has determined the applicability of the de minimis exclusion on a case-by-case basis, considering all relevant circumstances. In the past, the Commission has found amounts ranging from $2 to approximately $500 to be de minimis. See, Bixler v. State Ethics Commission, 847 A.2d 785 (Pa. Cmwlth. 2004). In addition, 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 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. 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 set forth the above principles, you are advised as follows. Under the Commission’s reasoning as set forth in Stefanko, Opinion 90-015, the Prize belongs to Commonwealth Agency B (see, Stefanko, supra, holding that any frequent flyer credits or award certificates received by or due a public official or public employee in connection with official travel paid for by his governmental employer would be the property of that employer). In the instant matter, but for your public employment, you would not have been in the position to receive via your Commonwealth email account the email from the Vendor which included the Contest, enter the Contest, and be awarded the Prize. The award of the Prize is a pecuniary benefit belonging to Commonwealth Agency B. See also, Confidential Advice, 91-528 (concluding that where a public employee was awarded a computer software prize while attending an open house in the performance of his duties as a public employee, the prize belonged to the governmental employer). However, if the value of the Prize would be less than $100 as the submitted facts suggest, the value of the Prize would be de minimis, and your acceptance of the Prize in and of itself would not form the basis for a violation of Section 1103(a) 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. Specifically not addressed herein is the applicability of the C. Conclusion: As an A for Commonwealth Agency B, you are a public employee 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) in your capacity as an employee of Commonwealth Agency B, you receive regular email newsletters sent to your Commonwealth email account from a [type of vendor] (the “Vendor”); (2) your job duties are unrelated to the services provided by the Vendor, and your job duties do not Confidential Advice, 13-566 October 7, 2013 Page 4 involve any contracting with, or regulation or oversight of, the Vendor or any similar vendor; (3) one email that you received from the Vendor included a [type of contest] (the “Contest”) which awarded multiple prizes; (4) you correctly [performed a certain activity] and were awarded one of the Contest prizes (the “Prize”); and (5) you express your understanding from your own limited research that the Prize is valued at less than $100, you are advised as follows. The Prize belongs to Commonwealth Agency B. If the value of the Prize would be less than $100, the value of the Prize would be de minimis, and your acceptance of the Prize in and of itself would not form the basis for a violation of Section 1103(a) 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 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