The URL can be used to link to this page

Home My WebLink About17-555 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING PO. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 (717) 783 -1610 1 -800- 932 -0936 ADVICE OF COUNSEL August 7, 2017 To the Requester: MAMI This responds to your letter dated July 6, 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–C-S. § 1101 et seq., would require A to disclose on his Statement of Financial Interests ---as gifts, transportation, lodging or hospitality —Bs and Cs that were D by E or by F to A's G but were promptly declined by him or his H. Facts: You have been authorized by A to request a confidential advisory from the Commission on his behalf. You have submitted facts, the material portion of which may be fairly summarized as follows. An entity goes by the name of [name of entity] (the °Entit ") [performed a certain activity which asserted that the Entity had presented A with gifts of nominal value] in order to 1 him to J and K. The Entity requested that Ls join the Entity in M to A for an N in order to [achieve a certain purpose]. Between [date] and [date], numerous Bs and Cs were D by E or by F to A's G. A or his H promptly declined to accept the Bs and Cs, which were O or P. On [date], a letter ( "Letter ") was sent to the B Qs who had Rs and to the S on behalf of the Entity. The Letter explained that A was declining the Bs and provided instructions for the Qs to reclaim available Cs. A copy of the Letter was subsequently emailed to Individual T, the U of the Entity. Based upon the above submitted facts, the question presented is whether A would be required to disclose on his Statement of Financial Interests —as gifts, transportation, lodging or hospitality --the aforesaid Bs and Cs that were D by E or by F to A's G but were promptly declined by him or his H. 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 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 FAX: (717) 787 -0806 0 Web Site: www.ethics.state.pa.us 0 e -mail: ethicsCoDstate.pa.us Confidential Advice, 17 -555 August 7, 2017 Page 2 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 discllosed all of the material facts. A is a public official subject to the provisions of the Ethics Act, including the requirements for filing Statements of Financial Interests. Section 1104(a) of the Ethics Act provides that each .public official /public employee must file a Statement of Financial Interests for the preceding calendar year, each year that he holds the position and the year after he leaves it. Section 1105 of the Ethics Act sets forth the substantive disclosure requirements for Statements of Financial Interests. Section 1105(b) of the Ethics Act provides, in pertinent part, as follows: § 1105. Statement of financial interests (b) Required information.- -The statement shall include the following information for the prior calendar year with regard to the person required to file the statement: (6) The name and address of the source and the amount of any gift or gifts valued in the aggregate at $250 or more and the circumstances of each gift. This paragraph shall not apply to a gift or gifts received from a spouse, parent, parent by marriage, sibling, child, grandchild, other family member or friend when the circumstances make it clear that the motivation for the action was a personal or family relationship. However, for the purposes Of this paragraph, the term "friend" shall not include a registered lobbyist or an employee of a registered lobbyist. (7) The name and address of the source and the amount of any payment for or reimbursement of actual expenses for transportation and lodging or hospitality received in connection with public office or employment where such actual expenses for transportation and lodging or hospitality exceed $650 in an aggregate amount per year. This paragraph shall not apply to expenses reimbursed by a governmental body or to expenses reimbursed by an organization or association of public officials or employees of political subdivisions which the public official or employee serves in an official capacity. 65 Pa.C.S. § 1105(b)(6) -(7). The Ethics Act defines the terms "gift" and "hospitality" as those terms are defined in Section 13A03 of Pennsylvania's lobbying disclosure law ( "Lobbying Disclosure Law "), 65 Pa.C.S. § 13A03 (see, 65 Pa.C.S. § '1 -102): Confidential Advice, 17 -555 August 7, 2017 Page 3 § 13A03. Definitions. "Gift." Anything which is received without consideration of equal or greater value. The term shall not include a political contribution otherwise reportable as required by law or a commercially reasonable loan made in the ordinary course of business. The term shall not include hospitality, transportation or lodging. "Hospitality." Includes all of the following: (1) Meals. (2) Beverages. (3) Recreation and entertainment. The term shall not include gifts, transportation or lodging. 65 Pa.C.S. § 13A03. By definition, something is not a "gift" if it is not "received" by the filer. 65 Pa.C.S. 13A03. Similarlyy, transportation, lodging and hospitality are not reportable unless `received., 65 Pa.C.S. § 1105(b)(7). Having set forth the above general principles, you are advised as follows. For purposes of financial disclosure under the Ethics Act, a ppublic officiallpublic employee cannot be forced to receive Bs and Cs proffered as gift(s), transportation, lodging or hospitality. Based upon the submitted facts, A did not receive —and therefore is not required to disclose on his Statement of Financial Interests —the aforesaid Bs and Cs that were D by E or by F to A's G but were promptly declined by him or his H. 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: A is a public official subject to the provisions of the Public Official and Emp oyee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., including the requirements for filing Statements of Financial Interests. Based upon the submitted facts that. (1) an entity that goes by the name of [name of entity] (the 'Entity [performed a certain activity] which asserted that the Entity had presented A with [gifts of nominal value . in order to I him to J and K; (2) the Entity requested that Ls join the Entity in M to A or an N in order to Lachieve a certain purpose]; 3) between [date] and [date], numerous Bs and Cs were D by E or by F to A's G; 4 A or his H promptly declined to accept the Bs and Cs, which were O or P; (5) on ate], a letter ("Letter') was sent to the B Qs who had Rs and to the S on behalf of the Entity; (6) the Letter explained that A was declining the Bs and provided instructions for the Qs to reclaim available Cs; and (7) a copy of the Letter was subsequently emailed to Individual T, the U of the Entity, you are advised as follows. Byy definition, something is not a "gift" if it is not "received" by the filer. 65 Pa.C.S. 13A03. Similarly, transportation, lodging and hospitality are not reportable unless `received." 65 Pa.C.S. § 1105(b)(7). For purposes of financial disclosure under the Ethics Act, a public official/public employee cannot be forced to receive Bs and Cs Confidential Advice, 17555 August 7, 2017 Page 4 F ' proffered as gift(s), transportation, lodging or hospitality. Based upon the submitted A did not receive —and therefore is not required to disclose on his Statement of Financial Interests —the aforesaid Bs and Cs that were D by E or by F to A's G but were promptly declined by him or his H. 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 aboearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writingg and must be actuall received at the Commission within thirty (20) days of the date of this Advice pursuant to 51 Pa. Code § 13.2(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 Me such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. S i ell e �j Robin M. Hittie Chief Counsel