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HomeMy WebLinkAbout82-579 GrantRobert N. Grant Administrative Officer Bureau of Commissions, Elections and Legislation 305 North Office Building RE: Travel, Official Responsibility Dear Mr. Grant: Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 October 19, 1982 ADVICE OF COUNSEL 82 - 579 This responds to your letter of July 30, 1982, in which you requested advice from the State Ethics Commission. Issue: You ask whether it is appropriate, under the Ethics Act, for State personnel to be transported to a vendor's location, in the performance of their official responsibility to the Commonwealth. Facts: Under the Pennsylvania Election Code, 25 P.S. 3031.5, the Bureau of Commissions, Elections, and Legislation, hereinafter the Bureau, is required to examine and approve electronic voting systems. This approval is required before such systems can be marketed to county election authorities throughout the Commonwealth. The Election Code provides that the Bureau secure three independent examiners to assist in conducting the examinations of the voting systems to be offered for sale. The Election Code further provides that one of the experts shall be knowledgeable in patent law and the other two should be experts in computer systems, automatic tabulating equipment or other such fields as shall be reasonably related to the operation of the electronic voting system under examination. These experts are required to report back to the Secretary of the Commonwealth, who makes and files his own report stating whether, in his opinion and in consideration of the reports of the experts, the system can be safely used by the voters at elections and meets all the requirements of the Election Code. After such approval, any county which wishes to use an electronic voting system may select the approved system for use at elections. The Election Code also provides that the experts, appointed by the secretary, shall receive $150 per day for their services. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Robert N. Grant October 19, 1982 Page 2 Westinghouse Information Systems, hereinafter Westinghouse, Division of Westinghouse Learning Corporation, has applied to the Bureau for an examination of the electronic voting system which they wish to market in the Commonwealth. Westinghouse maintains that the voting system hardware is of such a size and complexity that Westinghouse is not capable of transporting it to Harrisburg for examination. It should be noted that such examinations typically occur in Harrisburg with the equipment to be examined made available in Harrisburg. Westinghouse has offered to furnish air transportation for the three independent experts and staff from the Bureau to their headquaters in Iowa City, Iowa, for the purpose of conducting the examination of their voting system. In addition, Westinghouse proposes to include with that trip representatives of Dauphin County, an interested customer, in order to provide a demonstration of their system to those individuals as well. Tentative arrangements call for a one day trip, without overnight accomodations, so as to minimize the burden on agency, staff, the three experts, and the other individuals attending. Finally, you indicate that the Bureau has no funds to provide this kind of transportation and examination service at State expense to voting machine vendors, in general. Discussion: The Ethics Act requires that: (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Under this Section it is clear that no public official may solicit or accept any thing of value -- such as the transportation in question -- on the understanding that his official action or judgment would be influenced thereby. Likewise, this Section prohibits the vendor from offering any thing of value in order to influence the judgment of the persons involved in this review. However, there nothing in the information which you have presented which would indicate that there is any attempt or any understanding or that this transportation is being offered or accepted in or to influence the official judgment of the experts or staff. Transportation to Westinghouse's facility is being offered in order to allow the experts and Bureau staff to perform their official responsibility of reviewing the electronic voting system. The fact that it has not previously been the policy of the Bureau to travel to the vendor's site to perform such examinations does not alter our opinion. The individuals in question will be performing an official task, Robert N. Grant October 19, 1982 Page 3 will not be receiving any benefits, renumeration, expenses, or entertainment other than that which is absolutely essential and necessary to the performance of their assigned tasks. As such, and assuming that the transportation of the staff and expert will be the only expense incurred or provided by the vendor and that no expenses other than those associated with the examination of the voting system itself will be incurred or provided, we find no violation of the Ethics Act in the proposal. We emphasize that this particular situation is unique and should not be taken to generally express the opinion of the Commission in relation to trips, travel arrangements, or vendor offers, other than the one addressed by these facts. Conclusion: Under the specific facts set forth above, the Ethics Act would not be violated if Bureau personnel and experts were to participate in the proposed examination. 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 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 cc: William R. Davis, Secretary adv Sandra S. C stianson General Counsel