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HomeMy WebLinkAbout14-001 Confidential 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: 2/6/14 DATE MAILED: 2/18/14 14-001 This Opinion is issued in response to your letter dated October 21, 2013, by which you requested a confidential advisory from this Commission. I. ISSUE: Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon a State Legislator serving in the [Chamber of the General Assembly], who in a private capacity is an A, with regard to including the abbreviation for the title of A on his legislative letterhead, as part of his signature line in legislative emails, and on other legislative/constituent communications. II. FACTUAL BASIS FOR DETERMINATION: You have been authorized by State Legislator B to request a confidential advisory from this Commission on his behalf. You have submitted facts that may be fairly summarized as follows. In a private capacity, State Legislator B is an A. As an A, State Legislator B may lawfully use the title A or the professional abbreviation C. See, [cite]. In his capacity as an A, State Legislator B is a D with E, and he is F. You state that State Legislator B considers his background as an A to be an important part of the experience which he brings to legislative service. State Legislator B would like to include the abbreviation C on his legislative letterhead, as part of his signature line in legislative e-mails, and on other legislative/constituent communications. You state that State Legislator B will not use the authority of his public position, or confidential information obtained by being in that position, for the advancement of either his own private pecuniary benefit or that of E. You further state that State Legislator B will not use his official position to secure unwarranted privileges or exemptions for either himself or E. Based upon the above submitted facts, you ask whether State Legislator B would be in violation of the Ethics Act if he would include the abbreviation C on his legislative Confidential Opinion, 14-001 February 18, 2014 Page 2 letterhead, as part of his signature line in legislative emails, and on other legislative/constituent communications. By letter dated January 6, 2014, you were notified of the date, time and location of the executive meeting at which your request would be considered. You submitted a Brief, which the Commission received January 29, 2014, and you provided commentary at the Commission’s executive meeting on February 6, 2014, in which you presented the following points. You state that this Commission has, in the past, recognized that the use of an official title does not, by itself, run afoul of the Ethics Act. You state that this Commission has recognized a distinction between a legislator’s use of his title, similar to a professional abbreviation, which would not violate the Ethics Act, and an overt act by a legislator in his official capacity intended to benefit the legislator’s private pecuniary interests, which would violate the Ethics Act. You further state that State Legislator B’s use of the professional abbreviation C is authorized in law and therefore should not form the basis for a conflict of interest. You note that, from a practical prospective, State Legislator B is required to list information related to his profession/employment on his Statements of Financial Interests filed as public documents pursuant to the Ethics Act. You additionally note that such information is also included as part of his official biography on government websites. You contend that State Legislator B’s mere use of the aforesaid professional abbreviation, without some overt act to promote or advertise a private [type of business] and solicit clients, cannot form the basis of a conflict. 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. State Legislator B is a public official 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 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 Confidential Opinion, 14-001 February 18, 2014 Page 3 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 whichhe 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. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self-employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 65 Pa.C.S. § 1102. Section 1103(a) of the Ethics Act does not prohibit public officials/public employees from having outside business activities or employment; however, the public official/public employee may not use the authority of his public position--or confidential information obtained by being in that position--for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89-011. To the extent the activities of a legislator relate to “legislative actions” (introducing, considering, debating, voting, enacting, adopting, or approving legislation), they are constitutionally controlled and are exempt from the purview of the Ethics Act and this Commission. See, Mann, Opinion 07-005; Confidential Opinion, 05-002; Corrigan, Opinion 87-001. As for other actions, a legislator would not transgress Section 1103(a) of the Ethics Act unless: (1) he would be consciously aware of a private pecuniary benefit for himself, a member of his immediate family, or a business with which he or a member of his immediate family is associated; and (2) his action(s) would constitute one or more specific steps to attain that benefit. See, Kistler v. State Ethics Commission, 610 Pa. 516, 528, 22 A.3d 223, 231 (2011). In applying the above general principles to the instant matter, you are advised as follows. E is a business with which State Legislator B is associated in his capacity as a D. Based upon the submitted facts, State Legislator B’s inclusion of the abbreviation C on his legislative letterhead, as part of his signature line in legislative emails, and on other legislative/constituent communications would not in and of itself 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. Confidential Opinion, 14-001 February 18, 2014 Page 4 IV. CONCLUSION: As a State Legislator serving in the [Chamber of the General Assembly], State Legislator B is 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) in a private capacity, State Legislator B is an A; (2) as an A, State Legislator B may lawfully use the title A or the professional abbreviation C; (3) in his capacity as an A, State Legislator B is a D with E, and he is F; and (4) State Legislator B considers his background as an A to be an important part of the experience which he brings to legislative service, you are advised as follows. E is a business with which State Legislator B is associated in his capacity as a D. Based upon the submitted facts, State Legislator B’s inclusion of the abbreviation C on his legislative letterhead, as part of his signature line in legislative emails, and on other legislative/constituent communications would not in and of itself 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. 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