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Home My WebLink About17-534 ConfidentialSTATE ETHICS COMMISSION 309. FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1 -800- 932 -0936 ADVICE OF COUNSEL June 1, 2017 To the Requesters: 17 -534 This responds to your letter dated April 13, 2017, by which you requested a confidential advisory from the Pennsylvania State Ethics Commission ("Commission"). Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 P-a—T S. § 1101 et sew would impose prohibitions or restrictions upon a State Legislator serving in the A, who is a B of the C of Entity 1 and a B of the C of Entity 2, with regard to participating in legislative actions that would benefit Entity 1 or Entity 2. Facts: You have been authorized by State Legislator D to request a confidential adsory from, the Commission on his behalf. You have submitted facts that may be fairly summarized as follows. Pursuant to [title of statute, State Legislator D is the A's E to the C of Entity 1. See, [citation]. State Legislator does not receive compensation for serving as a B of En it ty 1's C, and he is not an F or G of Entity 1 or its C. Entity 1 is a [type of entity] that [performs a particular function]. In his private capacity as an H, State Legislator D is Entity 3's I to the C of Entity 2. State Legislator D does not receive compensation for serving as a- B of Entity 2's C, and he is not an F or G of Entity 2's C. Entity 2 is a [type of organization] that [performs a certain activity). Entity 2 receives funding from various sources, including state funding through funding to [name of Commonwealth entity]. Based upon the above submitted facts, you pose the following questions: (1) Whether State Legislator D would violate the Ethics Act if he would introduce, discuss, consider, and vote upon legislation that would benefit Entity 1; and I _ (2) Whether State Legislator D would violate the Ethics Act if he would introduce, discuss, consider, and vote upon legislation that would benefit Entity 2. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of e 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 FAX: (717) 787 -0806 0 Web Site: www.ethics.state.pa.us • e -mail: ethics CcDstate. pa.0 s Confidential Advice, 17 -534 June 1, 2017 Page 2 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. It is further initially noted that this Advice is limited to addressing the narrow questions posed. State Legislator D is a public official subject to the provisions of the Ethics Act. Section 1103(a) of the Ethics Act provides: § 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. § 1103(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 employyee 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 performance of duties and responsibilities unique to a particular public office or position of public employment. "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. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 65 Pa.C.S. § 1102. Confidential Advice, 17 -534 June 1, 2017 Page 3 Subject to the statutory exclusions to the definition of the term "conflict" or "conflict of interest, 65 Pa.C.S. § 1102, pursuant to Section 1103(a) of the Ethics Act, 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. To the extent the activities of a state legislator would relate to "legislative actions" (introducing, considering, debating, voting, enacting, adopting, or approving legislation), they would be constitutionally controlled and exempt from the purview of the Ethics Act and the Commission. See, Confidential Opinion, 14 -001; Mann, Opinion 07 -005; Confidential Opinion, 05 -002; Corrigan, Opinion 87 -001. Having set forth the above general principles, you are advised that the Ethics Act would not apply to State Legislator.D when he would be engaged in "legislative actions" (introducing, considering, debating, voting, enacting, adopting, or approving legislation), including legislative actions that would benefit Entity 1 or Entity 2. Lastly, 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. Conclusion : Based upon the submitted facts that: (1) pursuant to [title of statute , tate Legislator D is the A's E to the C of Entity 1; (2) State Legislator b does not receive compensation for serving as a B of Entit �erforms 1 s C, and he is not an F or G of Entity 1 or its C; (3) Entity 1 is a [type of entity] that a particular function]; in his private capacity as an H, State Legislator D is ntity 3`s I to the C of Entity 2; �4�- 5 State Legislator D does not receive compensation for serving as a B of Entity 2's C, and he is not an F or G of Entity 2's C; (6) Entity 2 is a type of organization] that [performs a certain activity]; and (7) Entity 2 receives 'funding ram various sources, including state funding through funding to [name of Commonwealth entity], you are advised as follows. State Legislator D is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et sew. The Ethics Act would not apply to State Legislator D when he would be engaged in "legislative actions" (introducing, considering, debating, voting, enacting, adopting, or approving legislation), including legislative actions that would benefit Entity 1 or Entity 2. Lastly, the propriety of the proposed conduct has only-been addressed under the Ethics Act. 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. Confidential Advice, 17 -534 une fl17 Page 4 Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date o this Advice pursuant to 51 Pa. Code § 73.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717-787-0806). 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