HomeMy WebLinkAbout16-002 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: 2/11/16
16 -002
This Opinion is issued in response to your advisory request letter of October 27,
2015.
I. 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 of the B who is subject to the Ethics Act
would be required to disclose on his Statement(s) of Financial Interests the value of
attendance at a [number of days] training program, where: (1) the costs of the seminars
and training, lodging and most of the food offered during this [number of days] period were
paid by J; and (2) such expenses could have been, but were not, reimbursed by the
Comptroller of the B; and if reportable, whether the costs paid for attendance at the
training program would be considered gift(s) or transportation, lodging and /or hospitality.
II. FACTUAL BASIS FOR DETERMINATION:
As D to the B A, you have been authorized by Individual E to request a confidential
advisory from this Commission on his behalf. You have submitted facts, the material
portion of which may be fairly summarized as follows.
Individual E is an employee of the B A and F of the G. You state that for purposes
of analyzing your advisory request, we are to assume that Individual E is a public
employee subject to the Ethics Act and, in particular, the Ethics Act's requirements forfiling
Statements of Financial Interests.
In 2015, Individual E attended Training Program H ( "the Training Program ") at
Educational Institution I in [location].
The Training Program is a [type of program] sponsored by C. It is designed for
government officials and staff. It covers topics including but not limited to: [list of topics].
C is part of a larger member organization known as J, which is specifically
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February 11, 2016
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mentioned in Pennsylvania law and which includes [number] governmental jurisdictions
represented by various government officials or their designees. You note that the
Commonwealth of Pennsylvania pays dues to belong to J and also appropriates funds for
attendance at its Ks.
The costs of the seminars and training, lodging and most of the food offered during
the [number of days] period of the Training Program were paid by J. However, you note
that such expenses are considered reimbursable under the expense guidelines of the B,
and that the expenses for Individual E's attendance at the Training Program could have
been, but were not, reimbursed by the Comptroller of the B.
You have submitted [organizational document] of J, which indicate that J is a [type
of organization] that [performs a certain function]. You note that [a certain legislative Act],
which created a [type of advisory board] known as [name of board], referred to J as an L of
M. See, [cite].
You pose the following specific questions
(1) Whether J is a "governmental body" within the meaning of that term as set
forth in the Ethics Act;
(2) Whether Individual E is required to disclose the value of his attendance at
the Training Program on his Statement of Financial Interests; and
(3) If disclosure is required, whether the value of Individual E's attendance at
the Training Program would be reportable as a "gift" if the $250 reporting
threshold would be met, or reportable as hospitality, transportation or
lodging if the threshold of in excess of $650 would be met.
By letter dated December 22, 2015, 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 January 20, 2016, you appeared for the purpose of
answering questions of the Commissioners. You noted that in addition to governmental
members, J includes /has relationships with private- sector or non - governmental entities,
which also pay dues to and can participate in J. You stated that the funds J receives are
commingled, but the monies used by J to pay for individuals such as Individual E to attend
training seminars are predominantly [governmental] dollars.
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.
This Opinion assumes, without deciding, that as an employee of the B A and F of
the G, Individual E is a public employee subject to the Ethics Act.
Section 1104(a) of the Ethics Act provides that each public official /public employee
must file a Statement of Financial Interests for the preceding calendar year, each yearthat
he holds the position and the year after he leaves it.
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Section 1105(b)(6) -(7) of the Ethics Act provides as follows:
§ 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:
(6) The name and address of the source and the
amount of any gift or gifts valued in the
aggregate at $250 or more and the
circumstances of each gift. This paragraph shall
not apply to a gift or gifts received from a
spouse, parent, parent by marriage, sibling,
child, grandchild, other family member or friend
when the circumstances make it clear that the
motivation for the action was a personal or family
relationship. However, for the purposes of this
paragraph, the term "friend" shall not include a
registered lobbyist or an employee of a
registered lobbyist.
(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)(6) -(7)
The Ethics Act defines the terms "gift" and "hospitality" as those terms are defined in
Section 13A03 of Pennsylvania's lobbying disclosure law ( "Lobbying Disclosure Law "), 65
Pa.C.S. § 13A03 (see, 65 Pa.C.S. § 1102):
§ 13A03. Definitions.
"Gift." Anything which is received without consideration
of equal or greater value. The term shall not include a political
contribution otherwise reportable as required by law or a
commercially reasonable loan made in the ordinary course of
business. The term shall not include hospitality, transportation
or lodging.
"Hospitality." Includes all of the following:
(1) Meals.
(2) Beverages.
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(3) Recreation and entertainment.
The term shall not include gifts, transportation or lodging.
65 Pa.C.S. § 13A03.
The Ethics Act defines the terms "source," "person," "business," "governmental
body," and "political subdivision" 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.
"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.
"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.
"Political subdivision." Any county, city, borough,
incorporated town, township, school district, vocational school,
county institution district, and any authority, entity or body
organized by the aforementioned.
65 Pa.C.S. § 1102.
There is no statutory exclusion to disclosure where training ortravel expenses could
have been —but were not —paid /reimbursed by the filer's own governmental body.
We shall now consider the specific questions that you have posed.
We first determine that J is not a "governmental body" as that term is defined in the
Ethics Act. J is not an establishment in the executive, legislative or judicial branch of a
state, a nation or a political subdivision thereof, and there is no indication that J performs a
governmental function.
Based upon the submitted facts, you are advised that assuming the respective
reporting thresholds would be met, Individual E would be required to disclose on his
Statement of Financial Interests the amount(s) paid by J for his attendance at the Training
Program. The amount attributable to costs for the seminars and training itself would be
considered a "gift" and would be reportable as such if the reporting threshold ($250 in the
aggregate for the calendar year) would be met. The amounts attributable to transportation,
lodging and /or hospitality (meals, beverages, and recreation /entertainment would be
reportable as such if the reporting threshold for that category (in excess of 650 in the
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February 11, 2016
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aggregate for the calendar year) would be met. Cf., McCormick, Opinion 15 -1001 at 7
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.
IV. CONCLUSION:
This Opinion assumes, without deciding, that as an employee of the A of the B and
F of the G, Individual E is a public employee subject to the Public Official and Employee
Ethics Act, 65 Pa.C.S. § 1101 et seg. ( "Ethics Act "). Under the submitted facts that: (1) in
2015, Individual E attended Training Program H ( "the Training Program ") at Educational
Institution I in [location]; (2) the Training Program is a [type of program] sponsored by C;
(3) the Training Program is designed for government officials and staff; (4) the Training
Program covers topics including but not limited to: [list of topics]; (5) C is part of a larger
member organization known as J, which is specifically mentioned in Pennsylvania law and
which includes [number] governmental jurisdictions represented by various government
officials or their designees; (6) the Commonwealth of Pennsylvania pays dues to belong to
J and also appropriates funds for attendance at its Ks; (7) the costs of the seminars and
training, lodging and most of the food offered during the [number of days] period of the
Training Program were paid by J; (8) such expenses are considered reimbursable under
the expense guidelines of the B, and the expenses for Individual E's attendance at the
Training Program could have been, but were not, reimbursed by the Comptroller of the B;
(9) [organizational document] of J indicate that J is a [type of organization] that [performs a
certain function]; (10) [a certain legislative Act], which created a [type of advisory board]
known as [name of board], referred to J as an L of M; (11) in addition to governmental
members, J includes /has relationships with private- sector or non - governmental entities,
which also pay dues to and can participate in J; and (12) the funds J receives are
commingled, but the monies used by J to pay for individuals such as Individual E to attend
training seminars are predominantly [governmental] dollars, you are advised as follows.
J is not a "governmental body" as that term is defined in the Ethics Act. Assuming
the respective reporting thresholds would be met, Individual E would be required to
disclose on his Statement of Financial Interests the amount(s) paid by J for his attendance
at the Training Program. The amount attributable to costs for the seminars and training
itself would be considered a "gift" and would be reportable as such if the reporting
threshold ($250 in the aggregate for the calendar year) would be met. The amounts
attributable to transportation, lodging and /or hospitality (meals, beverages, and
recreation /entertainment) would be reportable as such if the reporting threshold for that
category (in excess of $650 in the aggregate for the calendar year) would be met.
The propriety of the proposed conduct has only been addressed under the 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
Confidential Opinion, 16 -002
February 11, 2016
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