The URL can be used to link to this page

Home My WebLink About17-531 FlaniganK, r STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL May 3, 2017 To the Requester: Mr. Chris Flanigan, Esquire Dear Mr. Flanigan: 17 -531 This responds to your letter dated March 23, 2017, by which you requested an advisory from the Pennsylvania State Ethics Commission ( "Commission "). Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 PAS. § 1101 et seg., would impose prohibitions or restrictions upon an individual serving as an Assistant District Attorney with the Office of the District Attorney of Westmoreland County, who is seeking election as a Magisterial District Judge in the City of Greensburg, with regard to using a photograph of an Assistant District Attorney badge in his election campaign materials. Facts: You request an advisory from the Commission based upon the following su�mifted facts. You are an Assistant District Attorney with the Office of the District Attorney of Westmoreland County ( "District Attorney's Office "). You are seeking election as a Magisterial District Judge in the City of Greensburg. You are considering using a photograph of a badge ( "the Assistant District Attorney Badge ") in your election campaign materials. The Assistant District Attorney Badge is a shiny gold metal badge that bears the words "Assistant District Attorney — Westmoreland Co. PA" and the seal of the Commonwealth of Pennsylvania. You ask whether the Ethics Act would permit you to use a photograph of the Assistant District Attorney Badge in your campaign materials for election as a Magisterial District Judge. Discussion: It is initial) noted that pursuant to Sections 1107(10) and 1107(l 1) of the tics -Act, 65 Pa.C.S. y§§ 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. FAX: (717) 787 -0806 0 Web Site: www.ethics.state. a.us • e -mail: ethicsPstate.pa.us Ma 3 -531 2017 PPaagye32 As an Assistant District Attorney for the District Attorney's Office, you are a public official subject to the provisions of the Ethics Act. See, 65 Pa.C.S. § 1102; Rende11, Opinion 79 -007; Torrence, Advice 11 -525; Lehutsk , Advice 01 -528. Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is prohibited from engaging in conduct that constitutes a conflict of interest: § 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. §J 103(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 pe&rman.ce of dunes and responsibilities unique to a particular public office or position of public employment. 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. You are advised that the Ethics Act would not prohibit you from using a photograph of the Assistant District Attorney Badge in your campaign materials for election as a Magisterial District Judge subject to the condition that all related expenses (such as the expenses -for producing, reproducing, and distributing the photograph) would be paid with privatelcampaign funds. Cf., Williams, Order 76; O'Malley, Order 569; Fee, Advice 86 -542. This is because the use of�a photograph o the he Assistant District Attorney Badge would equate to the use of your official title and facsimile of an official seal. The Commission has held that the Ethics Act does not prohibit the use of an official title and facsimile- of an official seal in campaign materials. Williams, supra; Sigler, Order 527. Flans an, 17 -531 May 3, 2017 Page 3 It is parenthetically noted that the olitical and campaign activities of candidates for the office of Magisterial District Judge are governed by Canon 4 of the Rules Governing Standards of Conduct of Magisterial District Judges. See, Pa.R.C.P.D.J. No. 4.1 et seg. Since the Commission does not have the statutory jurisdiction to administer or interpret the Rules Governing Standards of Conduct of Magisterial District Judges, it is suggested that you seek legal advice as to the applicability of those Rules to the proposed conduct. In this regard, the Preamble to the Rules Governing Standards of Conduct of Magisterial District Judges provides that the Ethics and Professionalism Committee of the Special Court Judges Association of Pennsylvania is designated as an approved body to render advisory opinions regarding ethical concerns involving magisterial district judges and judicial candidates subject to such Rules. 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. Specifically not addressed herein is the applicability of the Rules Governing Standards of Conduct of Magisterial District Judges or the Rules of Professional Conduct. Conclusion: Based upon the submitted facts that: (1) ou are an Assistant District ttorney with the Office of the District Attorney of Westmoreland County ( "District Attorney's Office "); 2) you are seeking election as a Magisterial District Judge in the City of Greensburg; (3) you are considering using a photograph of a badge (the Assistant District Attorney Badge ") in your election campaign materials; and (4) the Assistant District Attorney Badge is a shinyy gold metal badge that bears the words "Assistant District Attorney �-- Westmoreland Co. PX and the seal of the Commonwealth of Pennsylvania, you are advised as follows. As an Assistant District Attorney for the District Attorney's Office, you are a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seg. The Ethics Act would not prohibit you from using a photograph of the Assistant District Attorney Badge in your campaign materials for election as a Magisterial District Judge subject to the condition that all related expenses (such as the expenses for producing, reproducing, and distributing the photograph) would be paid with private /campaign funds. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. It is suggested that you seek legal advice as to the applicability of the Rules Governing Standards of Conduct of Magisterial District Judges to the proposed conduct. 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. 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 thirt (30) days of the date t o ►s vice pursuant to 51 Pa. Code §173.2(h). The appeal may be Flanigan, 17 -531 May 3, 2017 Page 4 received at the Commission by hand delivery. United States mail, delivery service, or by FAX transmission (711487-0806). 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