HomeMy WebLinkAbout14-530 Confidential
ADVICE OF COUNSEL
July 8, 2014
14-530
This responds to your letter dated May 13, 2014, 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 prohibitions or restrictions upon a State Legislator
serving in the \[Chamber of the General Assembly\] with regard to: (1) making As in his
legislative role on a proposed B that would C his legislative district; or (2) assisting
constituents, either directly or through district office staff, on matters related to the
proposed B, where the proposed B would D E owned by the State Legislator.
Facts:
You request a confidential advisory from the Pennsylvania State Ethics
Commission on behalf of State Legislator F. You have submitted facts that may be
fairly summarized as follows.
\[Name of entity\] wants to build a new G next to the already-existing H, which is
located \[at a certain geographical location\]. The I will be used to J to the G, which will
require the building of a new B (the “Proposed B”) \[in a particular geographical area\].
Under the current proposals, the Proposed B will C State Legislator F’s
legislative district and will D E owned by him. You state that at this time, it is not clear
whether State Legislator F would experience any economic impact if the Proposed B
would be built.
K has L over M Bs. Under the K N, K receives a new proposal for a B and then
\[performs a certain activity\], which typically takes place in the form of Os. The proposed
B plan is then modified based on the P received by K. State Legislator F is interested in
\[engaging in a certain activity with regard to\] the Proposed B in his private capacity as a
Q. Citizens have requested that State Legislator F \[perform a certain activity with
regard to\] the Proposed B in his legislative capacity.
Based upon the above submitted facts, you pose the following questions:
(1) Whether State Legislator F would be in violation of the Ethics Act if he
would make As on the Proposed B in his legislative role; and
Confidential Advice, 14-530
July 8, 2014
Page 2
(2) Whether State Legislator F would be in violation of the Ethics Act if he
would assist constituents, either directly or through district office staff, on
matters related to the Proposed B.
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, 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.
State Legislator F 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 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.
Subject to the statutory exclusions to the Ethics Act’s definition of the term
“conflict” or “conflict of interest,” 65 Pa.C.S. § 1102, 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
Confidential Advice, 14-530
July 8, 2014
Page 3
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.
In each instance of a conflict of interest, the public official/public employee would
be required to abstain from participation. The abstention requirement would extend 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.
To the extent the activities of a state legislator would relate to “legislative actions”
(introducing, considering, debating, voting, enacting, adopting, or approving legislation),
they would be constitutionally controlled and exempt from the purview of the Ethics Act
and the State Ethics Commission. See, Mann, Opinion 07-005; Confidential Opinion,
05-002; Corrigan, Opinion 87-001.
Per the Pennsylvania Supreme Court’s decision in Kistler v. State Ethics
Commission, 610 Pa. 516, 22 A.3d 223 (2011), in order to violate Section 1103(a) of the
Ethics Act, a public official/public employee:
… must act in such a way as to put his \[office/public position\]
to the purpose of obtaining for himself a private pecuniary
benefit. Such directed action implies awareness on the part
of the \[public official/public employee\] of the potential
pecuniary benefit as well as the motivation to obtain that
benefit for himself.
Kistler, supra, 610 Pa. at 523, 22 A.3d at 227. 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.” Id., 610 Pa. at 528, 22 A.3d at 231.
Based upon Kistler, the existence of a violation of Section 1103(a) would depend
upon the circumstances in a given case. Raphael, Opinion 13-003.
A conflict of interest would not exist to the extent the “de minimis exclusion”
and/or 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.
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.
In order for the class/subclass exclusion to apply, two criteria must be met: (1)
the affected public official/public employee, immediate family member, or business with
which the public official/public employee or immediate family member is associated
must be a member of a class consisting of the general public or a true subclass
consisting of more than one member; and (2) the public official/public employee,
immediate family member, or business with which the public official/public employee or
immediate family member is associated must be affected "to the same degree" (in no
way differently) than the other members of the class/subclass. 65 Pa.C.S. § 1102; see,
Kablack, Opinion 02-003; Rubenstein, Opinion 01-007. The first criterion of the
exclusion is satisfied where the members of the proposed subclass are similarly
situated as the result of relevant shared characteristics. The second criterion of the
exclusion is satisfied where the individual/business in question and the other members
Confidential Advice, 14-530
July 8, 2014
Page 4
of the class/subclass are reasonably affected to the same degree by the proposed
action. Kablack, supra.
Having established the above general principles, you are advised as follows.
The submitted facts are insufficient to enable a conclusive determination as to
whether the elements of a conflict of interest would be established if State Legislator F
would make As on the Proposed B in his legislative role or would assist constituents,
either directly or through district office staff, on matters related to the Proposed B. The
submitted facts do not indicate whether the building of the Proposed B would financially
impact State Legislator F such as, for example, by increasing or decreasing the value of
his E or resulting in the payment to him of Rs for S to his E.
Therefore, you are advised that State Legislator F would not have a conflict of
interest and would not transgress Section 1103(a) of the Ethics Act as to making As on
the Proposed B in his legislative role or assisting constituents, either directly or through
district office staff, on matters related to the Proposed B unless: (1) State Legislator F
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) his official action 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.
The propriety of the proposed conduct has only been addressed under the Ethics
Act.
Conclusion:
As a State Legislator serving in the \[Chamber of the General
Assembly\], State Legislator F 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) \[name of entity\] wants to build a new G next to the already-
existing H, which is located \[at a certain geographical location\]; (2) the I will be used to J
to the G, which will require the building of a new B (the “Proposed B”) \[in a particular
geographical area\]; (3) under the current proposals, the Proposed B will C State
Legislator F’s legislative district and will D E owned by him; (4) at this time, it is not clear
whether State Legislator F would experience any economic impact if the Proposed B
would be built; (5) K has L over M Bs; (6) under the K N, K receives a new proposal for
a B and then \[performs a certain activity\], which typically takes place in the form of Os;
(7) the proposed B plan is then modified based on the P received by K; (8) State
Legislator F is interested in \[engaging in a certain activity with regard to\] the Proposed B
in his private capacity as a Q; and (9) citizens have requested that State Legislator F
\[perform a certain activity with regard to\] the Proposed B in his legislative capacity, you
are advised as follows.
The submitted facts are insufficient to enable a conclusive determination as to
whether the elements of a conflict of interest would be established if State Legislator F
would make As on the Proposed B in his legislative role or would assist constituents,
either directly or through district office staff, on matters related to the Proposed B. The
submitted facts do not indicate whether the building of the Proposed B would financially
impact State Legislator F such as, for example, by increasing or decreasing the value of
his E or resulting in the payment to him of Rs for S to his E.
Therefore, you are advised that State Legislator F would not have a conflict of
interest and would not transgress Section 1103(a) of the Ethics Act as to making As on
the Proposed B in his legislative role or assisting constituents, either directly or through
district office staff, on matters related to the Proposed B unless: (1) State Legislator F
Confidential Advice, 14-530
July 8, 2014
Page 5
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) his official action 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. 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