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
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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
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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
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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