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HomeMy WebLinkAbout13-007 Winkelman 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 13-007 Nora Winkelman, Chief Counsel Democratic Caucus Pennsylvania House of Representatives 620 Main Capitol Building P.O. Box 202248 Harrisburg, PA 17120-2248 Dear Ms. Winkelman: This responds to your submissions of August 20, 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 otherwise allowable expenses for postage and printing services for otherwise permissible mailings, where such mailings would be to residents of the State Representatives’ “new” legislative districts as determined by the final Reapportionment Plan of the Legislative Reapportionment Commission affirmed by the Pennsylvania Supreme Court. II.FACTUAL BASIS FOR DETERMINATION: As Chief Counsel for the Democratic Caucus of the Pennsylvania House of Representatives (“House”), you request an advisory opinion from this Commission on behalf of the following 60 State Representatives (hereinafter referred to as the “State Representatives”): Hon. Bryan Barbin Hon. Dwight Evans Hon. Daniel McNeill Hon. Louise Bishop Hon. Florindo Fabrizio Hon. J.P. Miranda Winkelman, 13-007 October 30, 2013 Page 2 Hon. Ryan Bizzarro Hon. Dan Frankel Hon. Gerald Mullery Hon. Brendan Boyle Hon. Marc Gergely Hon. Phyllis Mundy Hon. Kevin Boyle Hon. Jaret Gibbons Hon. Michael O’Brien Hon. Tim Briggs Hon. Neal Goodman Hon. Mark Painter Hon. Vanessa Brown Hon. Kevin Haggerty Hon. Cherelle Parker Hon. Michelle Brownlee Hon. Ted Harhai Hon. Eddie Day Pashinski Hon. Michael Carroll Hon. Patrick Harkins Hon. Adam Ravenstahl Hon. Dom Costa Hon. Jordan Harris Hon. Harry Readshaw Hon. Angel Cruz Hon. Sid Kavulich Hon. James Roebuck Hon. Mary Jo Daley Hon. William Keller Hon. Mark Rozzi Hon. Peter Daley Hon. Patty Kim Hon. John Sabatina Hon. Tina Davis Hon. Stephen Kinsey Hon. Mike Schlossberg Hon. Madeleine Dean Hon. William Kortz Hon. Brian Sims Hon. Daniel Deasy Hon. Deberah Kula Hon. Curtis Thomas Hon. Pamela DeLissio Hon. Timothy Mahoney Hon. Greg Vitali Hon. Anthony DeLuca Hon. Joseph Markosek Hon. Jake Wheatley Hon. Frank Dermody Hon. Robert Matzie Hon. Jesse White Hon. Maria Donatucci Hon. Michael McGeehan Hon. Rosita Younglood The State Representatives seek to be able to rely upon Longietti, et al., Opinion 13- 002 of this Commission (“Opinion 13-002”) with the same status and protections afforded by law to the individuals who originally requested Opinion 13-002 (hereinafter referred to as the “Original Requesters”). You state that the State Representatives understand that their reliance on Opinion 13-002 would be subject to the same terms and conditions as the reliance of 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. Winkelman, 13-007 October 30, 2013 Page 3 In Opinion 13-002, this Commission stated that 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. 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 support of your advisory request, you have submitted copies of various communications and memoranda, including but not limited to materials that were submitted to the Commission by the Original Requesters. 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, a Deputy Chief Counsel from your office appeared and offered to answer any 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. 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 Winkelman, 13-007 October 30, 2013 Page 4 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 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 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 60 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 Winkelman, 13-007 October 30, 2013 Page 5 business” to residents of their new legislative districts as determined by the final 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. 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