HomeMy WebLinkAbout16-001 ConfidentialOPINION OF THE COMMISSION
Before: Nicholas A. Colafella, Chair
Mark R. Corrigan, Vice Chair
Roger Nick
Kathryn Streeter Lewis
Maria Feeley
Melanie DePalma
DATE DECIDED: 1/20/16
DATE MAILED: 2/2/16
16 -001
This Opinion is issued in response to your memorandum of August 25, 2015, and
email of September 21, 2015, by which you requested a confidential advisory from this
Commission.
ISSUE:
Whether, pursuant to the Public Official and Employee Ethics Act ( "Ethics Act ") 65
Pa.C.S. § 1101 et seq., an employee of the A or a State Legislator serving in the A ( "State
Legislator No. 1 ") would have any obligation to report on their respective Statements of
Financial Interests filed pursuant to the Ethics Act travel expenses paid by another State
Legislator serving in the A ( "State Legislator No. 2 "), and /or by the affiliated business of
State Legislator No. 2, where: (1) the aforesaid individuals travelled jointly; (2) only
Commonwealth officials /employees were included in the travel; (3) the travel expenses
were legislative related and could have been properly reimbursed through the A if the A
employee or State Legislator No. 1 had incurred the expense; and (4) State Legislator No.
2 could have obtained, but did not choose to obtain, reimbursement of the travel expenses
through Public Official B of the A.
II. FACTUAL BASIS FOR DETERMINATION:
You have been authorized by State Legislator No. 1 and State Legislator No. 2 to
request a confidential advisory from this Commission on their behalf. You also request a
confidential advisory from this Commission on your own behalf as an employee of the A,
specifically, C and D.
In your August 25, 2015, advisory request and at this Commission's Executive
Meeting on October 6, 2015, you submitted facts, the material portion of which may be
fairly summarized as follows.
State Legislators serving in the A and their staff often travel together to legislative
events using various modes of travel. In 2015 State Legislator No. 2 traveled to a
legislative event accompanied by one or more other State Legislators, including State
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February 2, 2016
Page 2
Legislator No. 1, and one or more employees of the A, including you. Only Commonwealth
officials /employees were included in the travel. State Legislator No. 2 paid the expenses
for the travel either individually or through a business that he owns ( "the Business ").
Under the rules of the A, the travel expenses were legislative related and could have been
properly reimbursed through the A if you or State Legislator No. 1 had incurred the
expense. State Legislator No. 2 would have been permitted to obtain reimbursement for
the travel expenses through Public Official B of the A, but he chose not to do so.
Based upon all of the above submitted facts, you ask whether you, as an employee
of the A, or State Legislator No. 1 would have any obligation to report on your respective
Statements of Financial Interests filed pursuant to the Ethics Act the payments made by
State Legislator No. 2 or the Business for your travel to the legislative event.
This advisory Opinion is limited to addressing the narrow question posed underthe
Ethics Act. We have not been asked to address any other information that might arise
under any other Acts.
III. DISCUSSION:
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.
In their capacities as State Legislators serving in the A, State Legislator No. 1 and
State Legislator No. 2 are public officials subject to the provisions of the Ethics Act.
As the C and D, you are a public official /public employee subject to the provisions of
the Ethics Act.
Section 1105(b)(7) of the Ethics Act sets forth the requirements for disclosing on the
Statement of Financial Interests form paid /reimbursed expenses for transportation, lodging,
and /or hospitality received in connection with public office or employment:
§ 1105. Statement of financial interests
(b) Required information. - -The statement shall include
the following information forthe prior calendar year with
regard to the person required to file the statement:
(7) The name and address of the source and the amount of
any payment for or reimbursement of actual expenses
for transportation and lodging or hospitality received in
connection with public office or employment where such
actual expenses for transportation and lodging or
hospitality exceed $650 in an aggregate amount per
year. This paragraph shall not apply to expenses
reimbursed by a governmental body or to expenses
reimbursed by an organization or association of public
officials or employees of political subdivisions which the
public official or employee serves in an official capacity.
65 Pa.C.S. § 1105(b)(7).
Confidential Opinion, 16 -001
February 2, 2016
Page 3
The terms "source," "person," and "governmental body" are defined in the Ethics Act
as follows:
§ 1102. Definitions
"Source." Any person who is a provider of an item
reportable under section 1105 (relating to statement of
financial interests).
"Person." A business, governmental body, individual,
corporation, union, association, firm, partnership, committee,
club or other organization or group of persons.
"Governmental body." Any department, authority,
commission, committee, council, board, bureau, division,
service, office, officer, administration, legislative body or other
establishment in the executive, legislative orjudicial branch of
a state, a nation or a political subdivision thereof or any
agency performing a governmental function.
65 Pa.C.S. § 1102
Pursuant to Section 1105(b)(7) of the Ethics Act, source(s) and amount(s) of
paid /reimbursed travel expenses received by a public official /public employee in
connection with public office /public employment are to be disclosed on the Statement of
Financial Interests form when the disclosure threshold (in excess of $650 in the aggregate
for the calendar year) is met and neither of the statutory exclusions applies. There is no
statutory exclusion to disclosure based upon a perceived benefit or savings to the
governmental body or the taxpayers as a result of a third party paying travel expenses.
(Cf., Neff, Order 1484). Likewise, there is no statutory exclusion to disclosure where the
expenses could have been —but were not —paid /reimbursed by the governmental body
itself. The disclosure requirement is applicable when a third party pays the travel
expenses directly or reimburses the public official /public employee, bypassing the
governmental body.
Per the submitted facts, the travel expenses for you and State Legislator No. 1 were
paid directly by State Legislator No. 2 and /or his Business. The travel expenses were not
reimbursed by the A.
We determine that forjoint travel that is limited to public officials /public employees
and their government staff, the General Assembly did not intend the unenlightening and
unreasonable result of requiring such public officials /public employees to disclose each
other as source(s) of travel expenses where: (1) the travel expenses legitimately could
have been paid /reimbursed by their respective governmental body(ies); and (2) the travel
expenses are /were paid by one or more of the public officials /public employees present out
of his /her /their personal funds. Funds would be considered personal funds for this
purpose if they would be considered personal funds for tax purposes.
To the extent State Legislator No. 2 paid the travel expenses in question out of his
own personal funds, you and State Legislator No. 1 would not be required to disclose State
Legislator No. 2's payment of such travel expenses on your respective Statements of
Financial Interests.
To the extent the travel expenses in question were paid by the Business, and
assuming the disclosure threshold (in excess of $650 in the aggregate for the calendar
year) would be met, State Legislator No. 1 would be required to disclose the Business as
Confidential Opinion, 16 -001
February 2, 2016
Page 4
the source of his paid travel expenses. Likewise, assuming the aforesaid disclosure
threshold would be met, you would be required to disclose the Business as the source of
your paid travel expenses if you had discretion to accept them. However, if you were
directed to go along on the trip by State Legislator No. 1, the payments for both State
Legislator No. 1's travel expenses and for your travel expenses would be attributable to
State Legislator No. 1, and State Legislator No. 1 would be required to disclose the
Business as the source of payments of both his and your travel expenses. See, Staback,
Opinions 99 -1020 and 99- 1020 -R (which Opinions remain in effect with respect to the
Ethics Act).
This advisory Opinion is limited to addressing the narrow question posed underthe
Ethics Act.
IV. CONCLUSION:
As State Legislators serving in the A, State Legislator No. 1 and State Legislator
No. 2 are public officials subject to the provisions of the Public Official and Employee
Ethics Act ( "Ethics Act "), 65 Pa. C.S. § 1101 et seg.
As the C and D, you are a public official /public employee subject to the provisions of
the Ethics Act.
Based upon the submitted facts that: (1) State Legislators serving in the A and their
staff often travel together to legislative events using various modes of travel; (2) in 2015
State Legislator No. 2 traveled to a legislative event accompanied by one or more other
State Legislators, including State Legislator No. 1, and one or more employees of the A,
including you; (3) only Commonwealth officials /employees were included in the travel; (4)
State Legislator No. 2 paid the expenses for the travel either individually or through a
business that he owns ( "the Business "); (5) under the rules of the A, the travel expenses
were legislative related and could have been properly reimbursed through the A if you or
State Legislator No. 1 had incurred the expense; and (6) State Legislator No. 2 would have
been permitted to obtain reimbursement for the travel expenses through Public Official B of
the A, but he chose not to do so, you are advised as follows.
Pursuant to Section 1105(b)(7) of the Ethics Act, source(s) and amount(s) of
paid /reimbursed travel expenses received by a public official /public employee in
connection with public office /public employment are to be disclosed on the Statement of
Financial Interests form when the disclosure threshold (in excess of $650 in the aggregate
for the calendar year) is met and neither of the statutory exclusions applies. There is no
statutory exclusion to disclosure based upon a perceived benefit or savings to the
governmental body or the taxpayers as a result of a third party paying travel expenses.
Likewise, there is no statutory exclusion to disclosure where the expenses could have
been —but were not —paid /reimbursed by the governmental body itself. The disclosure
requirement is applicable when a third party pays the travel expenses directly or
reimburses the public official /public employee, bypassing the governmental body.
For joint travel that is limited to public officials /public employees and their
government staff, the General Assembly did not intend the unenlightening and
unreasonable result of requiring such public officials /public employees to disclose each
other as source(s) of travel expenses where: (1) the travel expenses legitimately could
have been paid /reimbursed by their respective governmental body(ies); and (2) the travel
expenses are /were paid by one or more of the public officials /public employees present out
of his /her /their personal funds. Funds would be considered personal funds for this
purpose if they would be considered personal funds for tax purposes.
To the extent State Legislator No. 2 paid the travel expenses in question out of his
own personal funds, you and State Legislator No. 1 would not be required to disclose State
Confidential Opinion, 16 -001
February 2, 2016
Page 5
Legislator No. 2's payment of such travel expenses on your respective Statements of
Financial Interests.
To the extent the travel expenses in question were paid by the Business, and
assuming the disclosure threshold (in excess of $650 in the aggregate for the calendar
year) would be met, State Legislator No. 1 would be required to disclose the Business as
the source of his paid travel expenses. Likewise, assuming the aforesaid disclosure
threshold would be met, you would be required to disclose the Business as the source of
your paid travel expenses if you had discretion to accept them. However, if you were
directed to go along on the trip by State Legislator No. 1, the payments for both State
Legislator No. 1's travel expenses and for your travel expenses would be attributable to
State Legislator No. 1, and State Legislator No. 1 would be required to disclose the
Business as the source of payments of both his and your travel expenses.
This advisory Opinion is limited to addressing the narrow question posed underthe
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,
Nicholas A. Colafella
Chair