HomeMy WebLinkAbout90-537 ConfidentialSTATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
April 19, 1990
Section 3(a) of the Ethics Law provides:
90 -537
Re: Conflict, Public Official /Employee, General Assembly, State
Representative, FIS, Reporting Requirements, Leases, Immediate
Family.
This responds to your letters of April 4 and 5, 1990 in which you
requested a confidential advice from the State Ethics Commission.
Issue: You ask whether the Public Official and Employee Ethics Law
requires a public official to list leases on his Financial Interests
Statements as to buildings that are owned by his parents and leased to
Commonwealth agencies.
Facts: You are a Member of the General Assembly of the Commonwealth of
Pennsylvania and inquire as to whether you have to report leases on
your Fiancial Interests Statements which your parents have entered into
with Commonwealth agencies. You also inquire as to whether any
conflict would exist on your part as a result of the leases. The
leases were executed with A Department and B Department for the period
March 1972 and February 1977. From March 1977 to February 1982 the
lease was extended to 1987, thereafter renewed and followed by the
current lease which ends February, 1993. From February, 1987 to March,
1988, the building subject to the lease was on a month to month basis
at existing rates due to renovations. The units have been rented for
the utilization of a job center, employmment office and C store. Your
parents have not entered into the leases with any agency related to the
Pennsylvania House of Representatives. You also include an attachment
which identifies the location of the properties, the square footage and
the rental on a monthly and annual basis.
Discussion: As Representative for the Commonwealth of Pennsylvania,
you are a public official as that term is defined under the Public
Official and Employees Ethics Law and as such you are subject to the
provisions of that law.
Section 3. Restricted Activities.
(a) No public official or public employee
shall engage in conduct that constitutes a conflict
of interest.
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The following terms are defined in the Ethics Law as follows:
Section 2. 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. "Conflict" or
"conflict of interest" 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
or 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.
Section 5(b)(3) of the Ethics Law provides as follows:
Section 5. Statement of Financial Interests.
(b) The Statement shall include the following
information for the prior calndar year with regard
to the person required to file the statement...
(3) Any direct or indirect interest in any real
estate which was sold or leased to the
Commonwealth, any of its agencies or political
subdivisions; purchased or leased from the
Commonwealth, any of its agencies or political
subdivisions; or which was the subject of any
condemnation proceedings by the Commonwealth, any
of its agencies or political subdivisions.
In applying the above provisions of law to the instant matter, you
are not required to list on your Financial Interests Statements the
property which is owned by your parents and leased to the Commonwealth
of Pennsylvania. In Denoncourt v. State Ethics Commission, 544 Pa.
Page 3
191, 470 A.2. 945 (1983), the Pennsylvania Supreme Court specifically
held that the reporting requirements of public officials did not extend
to the interests held by members of their immediate family, based upon
the right to privacy under the Pennsylvania Constitution. Therefore,
properties that are owned by your parents and leased to the
Commonwealth of Pennsylvania are not required to be listed on the
Financial Interests Statements.
As to the issue of whether you would have a conflict as a result
of the leases between your parents and the Commonwealth, Section 3(a)
of the Ethics Law quoted above provides that a public official /employee
may not use the authority of office or confidential information to
obtain a private pecuniary benefit for himself, a member of his
immediate family or business with which he is associated. Clearly your
parents are within the statutory definition of immediate family.
Therefore, Section 3(a) of the Ethics Law would restrict you from using
the authority of office or confidential information as a means in
whole or part in obtaining, extending or renewing these leases for your
parents. Reference is made to this provision of law not to imply that
there has or will be any transgression thereof but merely to provide a
complete response to your question. Further, in the unlikely event
that some matter would come before the General Assembly which
specifically relates to these particular leases, you must abstain as
well as file as written memorandum to that effect with the Chief Clerk
as per the requirements of Section 3(j) of the Ethics Law. As a matter
of clarification, it should be noted that the definition of conflict
has an exclusion whereby a public official /employee may act in
situations having a de minimus economic impact or where the action
affects to the same degree a class consisting of the general public or
a subclass consisting of an industry, occupation or other group which
would include the public official /employee or member of his immediate
family. Thus, Section 3(a) of the Ethics Law would not preclude your
participation or voting upon general matters relating to these
Commonwealth agencies or as to leasing agreements in general as part of
a class or subclass. The restriction noted above would only apply in
those situations which would involve matters specifically dealing with
the leases which your parents hold with the Commonwealth.
Lastly, the propriety of the proposed conduct has only been
addressed under the Ethics Law; the applicability of any other
statute, code, ordinance, regulation or other code of conduct other
than the Ethics Law has not been considered in that they do not involve
an interpretation of the Ethics Law. Specifically not addressed herein
is the applicability of the Legislative Code of Conduct.
Conclusion: As Representative for the Commonwealth of
Pennsylvania, you are a public official subject to the provisions of
the Ethics Law. The Ethics Law does not require you to list on your
Financial Interests Statements property which is owned by your parents
and leased to the Commonwealth of Pennsylvania. Section 3(a) of the
Ethics Law would restrict you from participating or voting on matters
such.
VJD /emg
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which would specifically involve or relate to the leases that your
parents hold with the Commonwealth, but Section 3(a) would not restrict
you from participating or voting in general matters concerning such
Commonwealth agencies or leases in general.
Pursuant to Section 7(9)(ii), this 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, providing
the requestor 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
Finally, if you disagree with this Advice or if you have any
reason to challenge same, you may request that the full Commission
review this Advice. A personal appearance before the Commission will
be scheduled and a formal Opinion from the Commission will be issued.
Any such appeal must be in writing and must be received at the
Commission within 15 days of the date of this Advice pursuant to 51 Pa.
Code Section 2.12.
Sincerely,
Vincent J. Dopko
Chief Counsel