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HomeMy WebLinkAbout14-002 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: 2/21/14 14-002 This Opinion is issued in response to the appeal of Advice of Counsel 13-570, which was issued on October 28, 2013. 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 two As for [name of political subdivision] (“the Political Subdivision”), Pennsylvania, as to: (1) authorizing the expenditure of public funds to advocate and educate residents of the Political Subdivision with regard to proposed changes to the Political Subdivision’s current B; or (2) publicly advocating during work hours with regard to proposed changes to the Political Subdivision’s current B, where the submitted facts include that: (a) The next election for Political Subdivision As is not until [year]; (b) The Political Subdivision’s current B would not be replaced until after the [year] election; (c) By expressing their opinions, the Two Political Subdivision As would not guarantee themselves future K or otherwise confer a pecuniary benefit upon themselves; and (d) The proposed public expenditures to advocate for the Political Subdivision’s current B would not benefit the Two Political Subdivision As personally. II.FACTUAL BASIS FOR DETERMINATION: By faxed transmission of November 27, 2013, you appealed Advice of Counsel 13- 570, which was issued on October 28, 2013. Confidential Opinion, 14-002 February 21, 2014 Page 2 Your initial advisory request presented facts that were summarized in the Advice of Counsel as follows: You have been authorized by Political Subdivision As Individual 1 and Individual 2, hereinafter collectively referred to as “the Two Political Subdivision As,” to request a confidential advisory from the Pennsylvania State Ethics Commission on their behalf. You have submitted facts that may be fairly summarized as follows. The Political Subdivision is governed by the [number]-Member Political Subdivision C pursuant to the D. You have submitted a copy of the D, which document is incorporated herein by reference. Pursuant to an E passed on [date], the F was established to consider and make recommendations as to whether the Political Subdivision’s current B should be changed. The F’s recommendations will be presented within [certain time frame] and will be subject to a subsequent E to determine whether such recommendations should be enacted. The F’s meetings and all of its other functions are funded by the Political Subdivision. [Number] of the [number] Members of the F are known as the G, and they are vocal proponents of eliminating the Political Subdivision’s current B and replacing it with H. [Number] of the F’s [number] Is are held by individuals affiliated with the G. You state that the J of the F recently [expressed a certain opinion as to the recommendations to be made by the F]. You state that the Political Subdivision C maintains that the Political Subdivision’s current B is less expensive and more efficient than the alternative proposals. You further state that the Political Subdivision C seeks to advocate for the Political Subdivision’s current B so that the residents of the Political Subdivision are fully informed. Based upon the above submitted facts, you pose the following questions: (1) Whether the Ethics Act would permit the Two Political Subdivision As to authorize the expenditure of public funds to advocate and educate the residents of the Political Subdivision with regard to the proposed changes to the Political Subdivision’s B; and (2) Whether the Ethics Act would permit the Two Political Subdivision As to publicly advocate during work hours with regard to the proposed changes to the Political Subdivision’s B. Confidential Advice, 13-570, at 1-2. Confidential Advice, 13-570 determined that the Two Political Subdivision As are public officials subject to the provisions of the Ethics Act. Confidential Advice, 13-570 further determined that each of the Two Political Subdivision As would have a conflict of interest pursuant to Section 1103(a) of the Ethics Act as to authorizing the expenditure of public funds to advocate and educate the residents of the Political Subdivision with regard to the proposed changes to the Political Confidential Opinion, 14-002 February 21, 2014 Page 3 Subdivision’s B, or by publicly advocating during work hours with regard to the proposed changes to the Political Subdivision’s B, to the extent that: (1) the Political Subdivision A 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; (2) the Political Subdivision A’s action(s) would constitute one or more specific steps to attain that benefit; and (3) neither the de minimis exclusion nor the class/subclass exclusion set forth within the Ethics Act’s definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, would be applicable. Confidential Advice, 13-570, at 4-5. Advice of Counsel 13-570 stated that in each instance of a conflict of interest, the Political Subdivision A(s) with the conflict would be required to abstain from participation--which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable--and additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. Id. at 5. On November 27, 2013, you appealed Confidential Advice, 13-570 and requested expedited consideration of your appeal. Your appeal was placed on the agenda for the February 6, 2014, executive meeting of this Commission. In your appeal, you submitted new material facts not contained in your initial advisory request. You stated that on [date], the F recommended that the Political Subdivision’s B be changed by [nature of proposed change]. You stated that a [month and year] E will determine whether the aforesaid recommendations will be adopted. Noting that the next election for Political Subdivision As is not until [year], you stated that the F’s proposal, if adopted, would not replace the Political Subdivision’s current B until after that election. You further stated in your appeal that by expressing their opinions, the Two Political Subdivision As “will not guarantee themselves future [K] or otherwise confer a pecuniary benefit upon themselves,” and that the proposed public expenditures to advocate for the Political Subdivision’s current B will not benefit the Two Political Subdivision As personally. Appeal of Confidential Advice 13-570, at 8-9. In addition to presenting new material facts in your appeal, you argue that the Ethics Act is not applicable to the political speech or planned expenditures of the Two Political Subdivision As. You argue that the proposed advocacy and/or expenditures would equally affect members of a class/subclass in the Political Subdivision, such that the “class/subclass” exclusion to the definition of the term “conflict or conflict of interest” would be applicable. You argue that Confidential Advice, 13-570 should be reversed because it leads to absurd results, specifically, that the Two Political Subdivision As cannot speak or expend funds in a debate of public importance and cannot respond to a request by the F for their opinions on these critical issues. You also argue that Political Subdivision As enjoy absolute immunity. Finally, you argue that Confidential Advice, 13-570 should be reversed because its interpretation of the Ethics Act infringes upon the constitutional rights of the Two Political Subdivision As to freedom of speech. 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. At the executive meeting on February 6, 2014, you appeared and offered commentary, which may be fairly summarized as follows. You provided further clarification as to the new material facts submitted in your appeal. You stated that regardless of the outcome of the vote on the [month and year] E as to the recommendations of the F, the Two Political Subdivision As will not be financially impacted because [explanation of factual circumstances]. You emphasized that there would be no private pecuniary benefit to the Two Political Subdivision As, and you also reiterated the other arguments set forth in your appeal. Confidential Opinion, 14-002 February 21, 2014 Page 4 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. We initially determine, as did Confidential Advice, 13-570, that the Two Political Subdivision As are public officials subject to the provisions of the Ethics Act. Sections 1103(a) and 1103(j) of the Ethics Act provide: § 1103. Restricted activities (a)Conflict of interest.-- No public official or public employee shall engage in conduct that constitutes a conflict of interest. (j)Voting conflict.-- Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three-member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. 65 Pa.C.S. §§ 1103(a), (j). 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 Confidential Opinion, 14-002 February 21, 2014 Page 5 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. "Immediate family." A parent, spouse, child, brother or sister. "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. We incorporate herein by reference the recitation as to the aforesaid Sections of the Ethics Act, Commission decisions, and the decision of the Pennsylvania Supreme Court in Kistler v. State Ethics Commission, 610 Pa. 516, 528, 22 A.3d 223, 231 (2011), as set forth in the last paragraph on page 3 through the fourth full paragraph on page 4 of Confidential Advice, 13-570. In considering your appeal, we reach the following conclusions. First, you have misinterpreted Confidential Advice, 13-570. It did not determine that each of the Two Political Subdivision As actually would have a conflict of interest as to the proposed conduct. Rather, it merely concluded that they would each have a conflict of interest to the extent that (meaning if) the elements of a conflict of interest would be met under the Kistler standard and neither of the statutory exclusions would apply. That conclusion was merely a restatement of Section 1103(a) of the Ethics Act, and as far as it went, it was accurate. Second, as an administrative agency, this Commission lacks jurisdiction to determine the constitutionality of any provision of the Ethics Act. See, Lehman v. Pennsylvania State Police, 576 Pa. 365, 839 A.2d 265 (2003); Pennsylvania Department of General Services v. Board of Claims, 881 A.2d 14 (Pa. Cmwlth. 2005). Third, as noted above, 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). The new submitted facts regarding the lack of a private pecuniary benefit are material and should have been included in the September 3, 2013, advisory request letter. These new facts Confidential Opinion, 14-002 February 21, 2014 Page 6 compel a determination that no conflict would exist as to the proposed conduct. Based upon our review, we shall modify the Advice in light of the new submitted facts. We hold that based upon the totality of the submitted facts, the Two Political Subdivision As would not have a conflict of interest pursuant to Section 1103(a) of the Ethics Act as to authorizing the expenditure of public funds to advocate and educate the residents of the Political Subdivision with regard to the proposed changes to the Political Subdivision’s B, or by publicly advocating during work hours with regard to the proposed changes to the Political Subdivision’s B, because their actions would not result in a prohibited private pecuniary benefit. Based upon our holding above, we need not address your additional arguments. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. IV.CONCLUSION: As As for [name of political subdivision] (“the Political Subdivision”), Pennsylvania, Individual 1 and Individual 2 (hereinafter collectively referred to as “the Two Political Subdivision As”) are public officials 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) the Political Subdivision is governed by the [number]-Member Political Subdivision C pursuant to the D; (2) pursuant to an E passed on [date], the F was established to consider and make recommendations as to whether the Political Subdivision’s current B should be changed; (3) the F’s recommendations were to be presented within [certain time frame] and will be subject to a subsequent E to determine whether such recommendations should be enacted; (4) the F’s meetings and all of its other functions are funded by the Political Subdivision; (5) [number] of the [number] Members of the F are known as the G, and they are vocal proponents of eliminating the Political Subdivision’s current B and replacing it with H; (6) [number] of the F’s [number] Is are held by individuals affiliated with the G; (7) the J of the F recently [expressed a certain opinion as to the recommendations to be made by the F]; (8) the Political Subdivision C maintains that the Political Subdivision’s current B is less expensive and more efficient than the alternative proposals; (9) the Political Subdivision C seeks to advocate for the Political Subdivision’s current B so that the residents of the Political Subdivision are fully informed; (10) the next election for Political Subdivision As is not until [year]; (11) the F’s proposal, if adopted, would not replace the Political Subdivision’s current B until after the [year] election; (12) by expressing their opinions, the Two Political Subdivision As will not guarantee themselves future K or otherwise confer a pecuniary benefit upon themselves; and (13) the proposed public expenditures to advocate for the Political Subdivision’s current B will not benefit the Two Political Subdivision As personally, you are advised as follows. The Two Political Subdivision As would not have a conflict of interest pursuant to Section 1103(a) of the Ethics Act as to authorizing the expenditure of public funds to advocate and educate the residents of the Political Subdivision with regard to the proposed changes to the Political Subdivision’s B, or by publicly advocating during work hours with regard to the proposed changes to the Political Subdivision’s B, because their actions would not result in a prohibited private pecuniary benefit. Confidential Advice, 13-570 is modified to reach the above holding in light of new facts that were submitted after the Advice was issued. The propriety of the proposed conduct has only been addressed under the Ethics Confidential Opinion, 14-002 February 21, 2014 Page 7 Act. Pursuant to Section 1107(10), 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. Finally, a party may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The party requesting reconsideration must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). By the Commission, John J. Bolger Chair