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HomeMy WebLinkAbout15-501 Confidential ADVICE OF COUNSEL February 4, 2015 15-501 This responds to your letter dated December 9, 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 the Political Subdivision A Public Official B with regard to soliciting vendors which currently do business with the office of the Political Subdivision A Public Official B and/or Political Subdivision A for money to help defray the cost of the C D. Facts: You request a confidential advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. You are the Political Subdivision A Public Official B. You are considering hosting the C D (the “Event”) in \[name of municipality\], Pennsylvania. You state that C conducts the Event pursuant to \[citation\]. The Event is paid for by Es and sponsorship fees, and the host is expected to raise money from sponsors to help defray the cost of the Event. Based upon the above submitted facts, you ask whether the Ethics Act would permit you to solicit vendors which currently do business with the office of the Political Subdivision A Public Official B and/or Political Subdivision A for money to help defray the cost of the Event. 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. As the Political Subdivision A Public Official B, you are a public official subject to the provisions of the Ethics Act. Sections 1103(a) and 1103(j) of the Ethics Act provide: Confidential Advice, 15-501 February 4, 2015 Page 2 § 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 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. Confidential Advice, 15-501 February 4, 2015 Page 3 "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. 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 use of authority of office is not limited merely to voting, but extends to any use of authority of office. Juliante, Order 809. One of the exclusions to the statutory definition of "conflict" or "conflict of interest," referred to herein as 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. The Commission has determined the applicability of the de minimis exclusion on a case-by-case basis, considering all relevant circumstances. In the past, the Commission has found amounts up to approximately $1,200 to be de minimis. See, Fidler, Order 1637. Section 1103(c) of the Ethics Act, 65 Pa.C.S. § 1103(c), provides: § 1103. Restricted activities (c) Accepting improper influence.-- No public official, public employee or nominee or candidate for public office shall solicit or accept anything of monetary value, including a gift, loan, political contribution, reward or promise of future employment, based on any understanding of that public official, public employee or nominee that the vote, official action or judgment of the public official or public employee or nominee or candidate for public office would be influenced thereby. 65 Pa.C.S. § 1103(c). In applying the above provisions of the Ethics Act to your inquiry, you are advised as follows. Section 1103(c) of the Ethics Act would prohibit you from soliciting or accepting vendor sponsorship(s) based on an understanding that your official action or judgment would be influenced thereby. Confidential Advice, 15-501 February 4, 2015 Page 4 As for Section 1103(a) of the Ethics Act, things of value received from vendor(s) may form the basis for a violation of Section 1103(a) of the Ethics Act when a public official/public employee uses the authority of his public position as to such vendor(s), the element of a prohibited private pecuniary benefit is established, and the de minimis exclusion is not applicable. Cf., Calhoun, Order 1562; Haldeman, Order 1443; Munford, Order 1390; Espenshade, Order 1387; Helsel, Order 801. It is not clear from the submitted facts whether money obtained from vendor(s) to defray the cost of the Event would result in any private pecuniary benefit to you (for example, by reducing out-of- pocket expenses you would otherwise incur) or to a member of your immediate family or a business with which you or a member of your immediate family is associated as the Ethics Act defines those terms. The submitted facts also do not indicate the amount(s) that vendor(s) would provide or would be asked to provide. Therefore, you are generally advised that soliciting money to defray the cost of the Event from vendor(s) that do business with the office of the Political Subdivision A Public Official B and/or Political Subdivision A would transgress Section 1103(a) of the Ethics Act if the elements of a use of authority of office for a prohibited private pecuniary benefit would be established and the de minimis exclusion would not be applicable. Absent any such improper influence/understanding or prohibited private pecuniary benefit, Section 1103(a) and Section 1103(c) of the Ethics Act would not prohibit you from soliciting vendors which currently do business with the office of the Political Subdivision A Public Official B and/or Political Subdivision A for money to help defray the cost of the Event. 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. Specifically not addressed herein is the applicability of the F. Conclusion: As the Political Subdivision A Public Official B, you are 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) you are considering hosting the C D (the “Event”) in \[name of municipality\], Pennsylvania; (2) the C conducts the Event pursuant to \[citation\]; and (3) the Event is paid for by Es and sponsorship fees, and the host is expected to raise money from sponsors to help defray the cost of the Event, you are advised as follows. Section 1103(c) of the Ethics Act would prohibit you from soliciting or accepting vendor sponsorship(s) based on an understanding that your official action or judgment would be influenced thereby. Soliciting money to defray the cost of the Event from vendor(s) that do business with the office of the Political Subdivision A Public Official B and/or Political Subdivision A would transgress Section 1103(a) of the Ethics Act if the elements of a use of authority of office for a prohibited private pecuniary benefit would be established and the de minimis exclusion would not be applicable. Absent any such improper influence/understanding or prohibited private pecuniary benefit, Section 1103(a) and Section 1103(c) of the Ethics Act would not prohibit you from soliciting vendors which currently do business with the office of the Political Subdivision A Public Official B and/or Political Subdivision A for money to help defray the cost of the Event. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Confidential Advice, 15-501 February 4, 2015 Page 5 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