Loading...
HomeMy WebLinkAbout13-006 Corey OPINION OF THE COMMISSION Before: John J. Bolger, Chair Nicholas A. Colafella, Vice Chair Raquel K. Bergen Mark R. Corrigan Roger Nick Kathryn Streeter Lewis DATE DECIDED: 10/9/13 DATE MAILED: 10/30/13 13-006 Rodney A. Corey, Esquire James G. Mann, Esquire Chief Counsel Chief Counsel to the Republican Leader House Republican Caucus Pennsylvania House of Representatives Pennsylvania House of Representatives Suite B-6 Main Capitol Suite B-6 Main Capitol P.O. Box 202228 P.O. Box 202228 Harrisburg, PA 17120-2228 Harrisburg, PA 17120-2228 Dear Counsel: This responds to your submissions of August 26-27, 2013, by which you requested an advisory opinion from this Commission. I.ISSUE: Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would prohibit Pennsylvania State Representatives (“State Representatives”) from using public funds to pay expenses for the following:(1) postage, printing, the transmission of electronic mail and robotic telephone calls for otherwise permissible mass communication to residents of their “new” legislative districts as determined by the final Reapportionment Plan of the Legislative Reapportionment Commission for the Pennsylvania House of Representatives affirmed by the Pennsylvania Supreme Court; and/or(2) the conduct of town halls, fairs and other types of events in their “new” legislative districts. II.FACTUAL BASIS FOR DETERMINATION: In your respective capacities as Chief Counsel for the Republican Caucus of the Pennsylvania House of Representatives (“House”) and Chief Counsel to the House Republican Leader, you request an advisory opinion from this Commission on behalf of the following 58 State Representatives (hereinafter referred to as the “State Representatives”): Hon. William F. Adolph, Jr. Hon. Mark K. Keller Hon. Marguerite Quinn Corey/Mann, 13-006 October 30, 2013 Page 2 Hon. Matthew E. Baker Hon. Thomas H. Killion Hon. Kathy L. Rapp Hon. Karen Boback Hon. Jerry Knowles Hon. Dave Reed Hon. Martin T. Causer Hon. Timothy Krieger Hon. Brad Roae Hon. Jim Christiana Hon. Gregory S. Lucas Hon. Tommy Sankey Hon. Becky Corbin Hon. Ryan Mackenzie Hon. Stan Saylor Hon. Gary Day Hon. Sandra Major Hon. Justin J. Simmons Hon. Gordon Denlinger Hon. David M. Maloney, Sr. Hon. Samuel H. Smith Hon. George Dunbar Hon. Jim Marshall Hon. Curtis G. Sonney Hon. Harold A. English Hon. Kurt A. Masser Hon. Jerry Stern Hon. Mike Fleck Hon. John D. McGinnis Hon. Richard R. Stevenson Hon. Matt Gabler Hon. Nicholas A. Miccarelli Hon. RoseMarie Swanger Hon. Mark M. Gillen Hon. Nicholas A. Micozzie Hon. Will Tallman Hon. Robert W. Godshall Hon. Ron Miller Hon. John Taylor Hon. Keith J. Greiner Hon. Thomas P. Murt Hon. Marcy Toepel Hon. Joseph T. Hackett Hon. Mark Mustio Hon. Dan Truitt Hon. Kate M. Harper Hon. Donna Oberlander Hon. Mike Turzai Hon. Susan C. Helm Hon. Scott A. Petri Hon. Mike Vereb Hon. Warren Kampf Hon. Tina Pickett Hon. Rob W. Kauffman Hon. Jeffrey P. Pyle The State Representatives seek their own Commission Opinion on the subject matter addressed in Longietti, et al., Opinion 13-002 (“Opinion 13-002”). You have also submitted additional facts and questions beyond those submitted by the individuals who originally requested Opinion 13-002 (hereinafter referred to as the “Original Requesters”). We take administrative notice of the following. In Opinion 13-002, the submitted facts were that: (1) recently, the Pennsylvania Supreme Court affirmed the final Reapportionment Plan of the Legislative Reapportionment Commission (“Affirmed Final Reapportionment Plan”); and (2) the General Operating Rules of the House permit House Members to use allowable expenses for postage and printing services. The question posed was whether the Ethics Act would prohibit the Original Requesters from using such public funds to pay otherwise allowable expenses for postage and printing services for otherwise permissible mailings, where such mailings would be to residents of their new legislative districts as determined by the Affirmed Final Reapportionment Plan. The mailings would consist of the following items: (1) LegislativeNewsletters reporting on matters coming before the General Assembly and informing citizens regarding state programs, constituent services provided by the Original Requesters’ legislative offices and contact information for those offices, legislative meetings and forums being held, the Original Requesters’ activities as legislators, a description of the reapportionment process, the boundaries of the Original Requesters’ new legislative districts and welcoming citizens to the new district, and informing citizens of other matters with a legislative purpose; (2) Birthday and congratulatory greetings; and (3) Notices of upcoming legislative meetings and forums. The aforesaid items would not include appeals for political support, discuss upcoming political campaigns or contests, or refer to political opponents, and the restrictions of the Rules of the House would be observed in relation to mass mailings near the time of elections. In Opinion 13-002, this Commission stated that an otherwise allowable expenditure Corey/Mann, 13-006 October 30, 2013 Page 3 of public funds for a mailing constituting “official business” would not constitute a private pecuniary benefit, and therefore would not form the basis for a violation of Section 1103(a) of the Ethics Act. This Commission followed longstanding Commission precedent (Rappaport, Order 126, decided in 1982, and Fischer, Order 486, decided in 1986) and held that the Ethics Act would not prohibit the Original Requesters from using public funds to pay otherwise allowable expenses for postage and printing services for otherwise permissible mailings of items constituting “official business” to residents of their new legislative districts as determined by the Affirmed Final Reapportionment Plan, and that such items constituting “official business” would include proposed non-political Legislative Newsletters, birthday and congratulatory greetings, and notices of upcoming legislative meetings and forums. This Commission did not express an opinion as to the effective date of the new legislative districts. In your advisory request, you state your understanding that the House “is operating under the premise that the districts to which legislators were elected in November of 2012 (and in subsequent special elections) remain in effect for representational purposes until the end of the 2013-14 Legislative Session.” Advisory Request letter, at 2. Nevertheless, you state that House Members would like to begin communicating on a wider scale with individuals who reside in the geographic areas which will be added to their current districts. You state that such communications would be as described by the Original Requesters in their submissions and reiterated in Opinion 13-002. Although you note that the federal franking statute referenced in prior Commission precedents no longer allows Members of the United States House of Representatives to send mass mail to areas added during decennial redistricting, and that communication from Pennsylvania House Members is primarily to their constituents, you state that it is not unusual for Pennsylvania House Members from time to time to communicate with, and provide legislative services to, residents of other legislative districts. You note that Rule 14 of the General Operating Rules of the House permits House Members to use public funds for postage and printing services, among other purposes, so long as the funds are used “for any legislative purpose or function.” Advisory Request letter, at 2 (Citing House Rule 14). You ask whether the Ethics Act would prohibit the State Representatives from using public funds to pay what the advisory request characterizes as “otherwise allowable expenses” for the following: (1) postage, printing, the transmission of electronic mail and robotic telephone calls for otherwise permissible mass communication to residents of their new legislative districts as determined by the final Reapportionment Plan of the Legislative Reapportionment Commission for the House of Representatives affirmed by the Pennsylvania Supreme Court; and/or(2) the conduct of town halls, fairs and other types of events in their new legislative districts. By letter dated September 4, 2013, you were notified of the date, time and location of the public meeting at which your request would be considered. At the public meeting on October 9, 2013, you appeared in order to answer questions of the Commission. III.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, this 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. Corey/Mann, 13-006 October 30, 2013 Page 4 The State Representatives are public officials subject to the provisions of the Ethics Act. 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 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 engaging in conduct that constitutes a “conflict of interest.” Subject to certain statutory exclusions, the term “conflict” or “conflict of interest” is defined as use of the authority of public office/employment or confidential information received through 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. One of the statutory exclusions to the definition of the term "conflict" or "conflict of interest,” hereinafter referred to as the "de minimis exclusion,” precludes a finding of a 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. This Commission has determined the applicability of the de minimis exclusion on a case-by-case basis, considering all relevant circumstances. In the past, this 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). However, it is noted that an economic impact may aggregate over time, rather than be limited to a Corey/Mann, 13-006 October 30, 2013 Page 5 particular increment of time such as a month or year. Confidential Opinion, 05-001. The Pennsylvania Supreme Court has held that in order to violate Section 1103(a) of the Ethics Act, a public official/public employee “must be consciously aware of a private pecuniary benefit for himself, his family, or his business, and then must take action in the form of one or more specific steps to attain that benefit.” Kistler v. State Ethics Commission, 610 Pa. 516, 528, 22 A.3d 223, 231 (2011). Rule 14 of the 2013-2014 General Operating Rules of the House provides for money appropriated for the “allowable expenses” of House Members to be used for “any legislative purpose or function,” including but not limited to postage and printing services. An otherwise allowable expenditure of public funds for a mailing constituting “official business” would not constitute a private pecuniary benefit, and therefore would not form the basis for a violation of Section 1103(a) of the Ethics Act. Opinion 13-002; Cf., Salvatore, Order 494 at 4; Kistler, supra. As we held in Opinion 13-002, we hold in the instant matter that the Ethics Act would not prohibit the State Representatives from using public funds to pay otherwise allowable expenses for postage and printing services for otherwise permissible mailings of items constituting “official business” to residents of their new legislative districts as determined by the Affirmed Final Reapportionment Plan. Such items constituting “official business” would include non-political Legislative Newsletters, birthday and congratulatory greetings, and notices of upcoming legislative meetings and forums as delineated in Opinion 13-002. See, Opinion 13-002; Rappaport, supra; Fischer, supra. The other expenditures posed by your inquiry are not specifically referenced in Rule 14 of the 2013-2014 General Operating Rules of the House, either as to “new” or “old” legislative districts. Although the advisory request characterizes such expenditures as “otherwise allowable,” it is not within the jurisdiction of this Commission to interpret any ambiguity in the House Rules. Moreover, mass communication by electronic mail or robotic telephone calls would be expressly prohibited within 60 days immediately preceding an election at which the House Member is a candidate. See, General Operating Rules of the House, Ethical Conduct Rules of the House of Representatives, Rule 1E (definition of “mass communication”), Rule 2E(15). You are generally advised that under the submitted facts, Section 1103(a) of the Ethics Act would not prohibit the State Representatives from using public funds to pay expenses for the transmission of electronic mail or robotic telephone calls for mass communication to residents of their new legislative districts, or the conduct of town halls, fairs and other types of events in their new legislative districts, subject to the condition that such expenditures: (1) would be for “official business” in full compliance with the General Operating Rules of the House; or (2) would fall within the de minimis exclusion to the Ethics Act’s definition of the term “conflict” or “conflict of interest,” 65 Pa.C.S. § 1102. 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. IV.CONCLUSION: The 58 Pennsylvania State Representatives on whose behalf you have inquired (hereinafter referred to as the “State Representatives”) are public officials subject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. The Ethics Act would not prohibit the State Representatives from using public funds to pay otherwise allowable expenses for postage and printing services for otherwise permissible mailings of items constituting “official business” to residents of their new legislative districts as determined by the final Corey/Mann, 13-006 October 30, 2013 Page 6 Reapportionment Plan of the Legislative Reapportionment Commission affirmed by the Pennsylvania Supreme Court. Such items constituting “official business” would include non-political Legislative Newsletters, birthday and congratulatory greetings, and notices of upcoming legislative meetings and forums as delineated in Longietti, et al., Opinion 13-002 of this Commission. Under the submitted facts, Section 1103(a) of the Ethics Act would not prohibit the State Representatives from using public funds to pay expenses for the transmission of electronic mail or robotic telephone calls for mass communication to residents of their new legislative districts, or the conduct of town halls, fairs and other types of events in their new legislative districts, subject to the condition that such expenditures: (1) would be for “official business” in full compliance with the General Operating Rules of the House; or (2) would fall within the de minimis exclusion to the Ethics Act’s definition of the term “conflict” or “conflict of interest,” 65 Pa.C.S. § 1102. The propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(10) of the Ethics Act, the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. By the Commission, John J. Bolger Chair