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HomeMy WebLinkAbout84-604 PerzelJohn M. Perzel, Member House of Representatives Commonwealth of Pennsylvania P.O. Box 183, Main Capitol Bldg. Harrisburg, Pennsylvania 17120 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 11, 1984 84 -604 RE: Campaign Literature, Legislative Actions Dear Representative Perzel: This responds to your letter of August 17, 1984, in which you requested advice from the State Ethics Commission. Issue: You ask whether you can comment and respond, as a Member of the House of Representatives, to defend and explain your votes on certain legislative actions. Facts: You currently serve as a Member of the House of Representatives and you are seeking re- election to that position. Your opponent in this election is currently circulating a piece of literature in your legislative district. You indicate that there are five specific allegations made in this literature stating that you: 1. voted to slash funding for senior citizens centers; 2. voted to slash state funds for a nutrition program; 3. that you consistently voted against the prescription drug program; 4. that you voted to raise the state income tax; and, 5. voted to cut unemployment compensation benefits. You state that none of these statements are true and that, in fact, they are "outright lies." Specifically, you indicate that you: 1. voted for increase funding for senior citizens centers; 2. voted for increase funding for nutrition programs; 3. voted for the prescription drug program; John M. Perzel, Member September 11, 1984 Page 2 4. voted against raising the state income tax..; and, 5. voted for the bill which was supported by both labor and industry representatives which was designed to restore "fiscal integrity" to the unemployment compensation fund. You state in your request to us that you feel that you have a right to respond to these "utterly outrageous falsehoods as a legislator and not in any sense as a politician." Further, you wish to respond to these statements as an act of public policy in the discharge of your duties as an elected public official. You state, that to "force you to respond to the defense of your votes on the floor of the House of Representatives as a private, political act ", would be "unconscionable." You state that because your votes were cast in an open session on matters before the House, you should be able to defend these actions as part of your legislative function as part of the duty you were sworn to perform as a Representative. You indicate that you wish an immediate response to the ethical propriety of your defending yourself against "lies and distortion of your votes on legislation." Discussion: As an elected Representative your are, of course, bound by the provisions of the State Ethics Act which include the following provision as Section 3(a) of said Act. Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). The Ethics Commission has concluded that there are circumstances under which a public official may not use his public office to support his re- election campaign or the political campaigns of friends or collegues. See Rappaport, No. 126-C and McClatchy, No. 130 -C. In these cases, the Commission indicated that both an objective and subjective analysis of the question of whether a particular action or mailing should be considered to be for public (legislative) or private (political) purposes must be undertaken. In your case, we must note that we initially assume that you wish to respond not only as a legislator but utilizing funds provided to you for legislative purposes out of your expense account allowable for such purposes as a Member of the House of Representatives. If this is not the case, the analysis is much easier and our conclusion that your proposed activity is proper is much clearer. John M. Perzel, Member September 11, 1984 Page 3 Nevertheless, given the analysis that was developed in Rappaport and McClatchy cases, your proposed activity would be reasonably said to relate more to legislative responsibilities, than to be one designed to primarily advance your electoral prospects. This conclusion would be particularly applicable if, in your response to such a mailing, you do not include any direct appeal for political support; do not indicate what you intend to do or undertake in the next legislative session, if you are re- elected; do not discuss the upcoming political campaign or contest by referring to political opponents or going beyond the mere recitation or citation of the actual votes which you cast on the various items at issue. If your proposed mailing and response would be primarily an effort to inform and advise current and potential constituents of your record and positions on various issues, this activity falls within the confines of "official business" properly payable from legislative funds and undertaken in your capacity as a legislator. As the Commission stated in Rappaport: ... this mailing was primarily an effort to inform and advise current and potential constituents and out weighs the assertion that this mailing was primarily aimed at soliciting their votes rather than their views. This is particularly true where, as found above, there is only passing reference to the upcoming election, no mention of your opponent, the mailing contained no direct appeal for votes, was made well prior to the primary and was part of a long- standing practice of similar communications (through your reports) with citizens in your locality. See Rappaport," page 5. Based upon the outline of the facts that you have provided, it would not be a violation of Section 3(a) of the Ethics Act for you to respond, as a legislator, and we assume, using public funds, to communicate with your constituents in a manner which would provide a recordation of your activities as a legislator. Conclusion: The activity in question, analyzed in light of the concepts referred to in the Ethics Act and the Orders of this Commission, under these circumstances, does not violate Section 3(a) of the Ethics Act, nor create the appearance of a conflict of interest between your interests and the public trust. 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. John M. Perzel, Member September 11, 1984 Page 4 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 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 made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. SSC /rdp Sincerely, S.ndra S. h i tianson General Counsel