HomeMy WebLinkAbout15-561 Confidential
ADVICE OF COUNSEL
October 30, 2015
15-561
This responds to your letter dated September 9, 2015, by which you requested a
confidential advisory from the Pennsylvania State Ethics Commission (“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 assisting the A in an
ongoing proceeding before the B pertaining to a C filed against the A with respect to the
D of the E, where: (1) in his private capacity, the State Legislator has an F relationship
with the \[type of firm\] of \[identification of firm\] (“the Firm”) as a G to the Firm; (2) the
Firm is the H for the A; (3) the State Legislator would assist the A in his capacity as a
public official and would not assist the A on behalf of the Firm; and (4) the State
Legislator would not receive from the Firm any income associated with the proceeding
before the B.
Facts:
You request a confidential advisory from the Commission on behalf of
State Legislator I. You have submitted facts that may be fairly summarized as follows.
Pursuant to a J, State Legislator I has an F relationship with the Firm. State
Legislator I is a G to the Firm, and he is not a director, officer, owner, employee, or
holder of a financial interest in the Firm. You state that no member of State Legislator
I’s immediate family is a director, officer, owner, employee, or holder of a financial
interest in the Firm. State Legislator I did not receive any income from the Firm in 2013,
2014, or so far in 2015.
The Firm serves as the H for the A. State Legislator I performs no work for and
receives no income from the contract between the A and the Firm.
State Legislator I is a K of L. The D of the E is the M. State Legislator I believes
that the D of the E reflects the N.
A C has been filed with the B against the A with respect to the D of the E. State
Legislator I, in his capacity as a public official rather than in his capacity as an F O with
the Firm, would like to assist the A with the ongoing proceeding before the B. You state
that State Legislator I’s participation would be within the bounds of the P and could
include either Q or R submitted in support of the A and its E as part of a B S. You
further state that State Legislator I does not intend to T on behalf of the Firm or
advertise his F relationship with the Firm as part of the B proceeding. You additionally
Confidential Advice, 15-561
October 30, 2015
Page 2
state that State Legislator I would not receive from the Firm any income associated with
the B proceeding.
Based upon the above submitted facts, you ask whether State Legislator I would
be in violation of the Ethics Act if he would assist the A in the ongoing B proceeding in
his capacity as a public official.
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.
In his capacity as a State Legislator serving in the \[Chamber of the General
Assembly\], State Legislator I 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
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.
Confidential Advice, 15-561
October 30, 2015
Page 3
"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.
"Financial interest."
Any financial interest in a legal
entity engaged in business for profit which comprises more
than 5% of the equity of the business or more than 5% of the
assets of the economic interest in indebtedness.
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
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.
The Pennsylvania Supreme Court has held that 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 v. State Ethics Commission, 610 Pa. 516, 523, 22 A.3d 223, 227 (2011). 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.
In applying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
Based upon the submitted facts, the Firm would not be considered a business
with which State Legislator I is associated because neither State Legislator I nor any
Confidential Advice, 15-561
October 30, 2015
Page 4
member of his immediate family is a director, officer, owner, employee, or holder of a
financial interest in the Firm.
You are advised that State Legislator I would not have a conflict of interest and
would not transgress Section 1103(a) of the Ethics Act as to assisting the A in the
ongoing B proceeding in his capacity as a public official unless: (1) State Legislator I
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 of the statutory exclusions to the definition of “conflict” or
“conflict of interest” as set forth in the Ethics Act, 65 Pa.C.S. § 1102, would be
applicable.
The propriety of the proposed conduct has only been addressed under the Ethics
Act.
Conclusion:
In his capacity as a State Legislator serving in the \[Chamber of the
General Assembly\], State Legislator I 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) pursuant to a J, State Legislator I has an F
relationship with the \[type of firm\] of \[identification of firm\] (“the Firm”); (2) State
Legislator I is a G to the Firm, and he is not a director, officer, owner, employee, or
holder of a financial interest in the Firm; (3) no member of State Legislator I’s immediate
family is a director, officer, owner, employee, or holder of a financial interest in the Firm;
(4) the Firm serves as the H for the A; (5) State Legislator I performs no work for and
receives no income from the contract between the A and the Firm; (6) State Legislator I
is a K of L; (7) the D of the E is the M; (8) State Legislator I believes that the D of the E
reflects the N; (9) a C has been filed with the B against the A with respect to the D of the
E; (10) State Legislator I, in his capacity as a public official rather than in his capacity as
an F O with the Firm, would like to assist the A with the ongoing proceeding before the
B; (11) State Legislator I’s participation would be within the bounds of the P and could
include either Q or R submitted in support of the A and its E as part of a B S; (12) State
Legislator I does not intend to T on behalf of the Firm or advertise his F relationship with
the Firm as part of the B proceeding; and (13) State Legislator I would not receive from
the Firm any income associated with the B proceeding, you are advised as follows.
The Firm would not be considered a business with which State Legislator I is
associated because neither State Legislator I nor any member of his immediate family is
a director, officer, owner, employee, or holder of a financial interest in the Firm. State
Legislator I would not have a conflict of interest and would not transgress Section
1103(a) of the Ethics Act as to assisting the A in the ongoing B proceeding in his
capacity as a public official unless: (1) State Legislator I 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 of the
statutory exclusions to the definition of “conflict” or “conflict of interest” as set forth in the
Ethics Act, 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.
Confidential Advice, 15-561
October 30, 2015
Page 5
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