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HomeMy WebLinkAbout17-564 Hafner-SabatinaSTATE ETHICS COMMISSION 3019 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1 -8010- 932 -0936 ADVICE OF COUNSEL September 15, 2017 To the Requester: C.J. Hafner, II Chief Counsel Democrat Legal Staff Senate of Pennsylvania Dear Mr. Hafner: 17 -564 This responds to your letter dated August 9, 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 7=.S. § 1101 et sew , would impose prohibitions or restrictions upon a Pennsylvania State Senator, w€io in his private capacity as an attorney has a law firm that he operates as a sole practitioner, with regard to becoming associated with a law firm owned by his father, where the Philadelphia Parking Authority is a client of his father's law firm. Facts: You have been authorized by Pennsylvania State Senator John Sabatina enator Sabatina ") to request an advisory from the Commission on his behalf. You have submitted facts that may be fairly summarized as follows. Senator Sabatina has been a Member of the Pennsylvania General Assembly since 2006. In a private capacity, Senator Sabatina is an attorney licensed to practice law in Pennsylvania. Senator Sabatina has a law firm that he operates as a sole practitioner. Senator Sabatina has an opportunity to become associated with a law firm the Law Firm ") owned by his father. The Philadelphia Parking Authority is one of the Firm's clients. Four entities, including the Law Firm, represent the Philadelphia Parking Authority in matters related to the collection of fines from tickets issued for red light violations recorded by red light cameras. The Law Firm was awarded a contract to represent the Philadelphia Parking Authority as to such matters through a public bidding process. You state that if Senator Sabatina would become associated with the Law Firm, he would not handle any legal matters for the Philadelphia Parking Authority in order to avoid even an appearance of impropriety. Senator Sabatina's compensation from the FAX: (717) 787 -0806 0 Web Site: www.ethics.state.pa.us a e -mail: ethicsPstate.pa.us Hafner, 17 -564 September 15, 2017 Page 2 Law Firm would not be paid from any fees earned by the Law Firm from the Philadelphia Parking Authority. Based upon the above submitted facts, you ask whether the Ethics Act would impose any prohibitions or restrictions upon Senator Sabatina with regard to his proposed association or activities with the Law Firm. 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 facts relevant to the inquiry. 65 Pa.C.S. §§ 110700), (11). An advisory only affords a defense to the extent the requester has truthfully disc osed all of the material facts. In his capacity as a Member of the Pennsylvania State Senate, Senator Sabatina 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 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. "Immediate family." A parent, spouse, child, brother or sister. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self- employed individual, holding company, Hafner, 17 -564 ep et tuber 15, 2017 Page 3 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. "Financial interest." Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. 65 Pa.C.S. § 1102. 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 officelemployment 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. Sections 1103(b) and 1103(c) of the Ethics Act, 65 Pa.C.S. §§ 1103(b), (c), provide in part that no person shall offer or give to a public official/public employee anything of monetary value and no public official/public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or Judgment of the public official/public employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. Having set forth the above general principles, you are advised as follows. Senator Sabatina's father is a member of his "immediate family" as that term is defined in the Ethics Act. The Law Firm is a business with which Senator Sabatina's father is associated in his capacity as the owner. Section 1103(a ) of the Ethics Act, pertaining to conflict of interest, imposes restrictions upon pubic officials and public employees. Section 1103(x) imposes restrictions upon Senator Sabatina in his capacity as a public official, rather than upon him in his private capacity as an attorney. Therefore, Section 1103(a) of the Ethics Act would not prohibit Senator Sabatina, in his private capacity as an attorney, from entering into the proposed association with the Law Firm. The Law Firm would be a business with which Senator Sabatina is associated —as the Ethics Act defines that term —to the extent that he would be a director, officer, owner, employee, or holder of a financial interest in the Law Firm under the proposed association with the Law Firm. In his public capacity as a Member of the Pennsylvania State Senate, Senator Sabatina could have a conflict of interest under Section 1103(a) of the Ethics Act in matters that would financially impact him or a business with which he or a member of his immediate family is associated, such as the Law Firm. However, to the extent the activities of a state legislator relate to "legislative actions" (introducing, considering, debating, voting, enacting, adopting, or approving legislation), they are constitutionally controlled and are exempt from the purview of the Ethics Act and the Commission. See, Mann, Opinion 07 -005; Confidential Opinion, 05 -002; Corrigan, Opinion 87 -001. Aster other actions, Senator Sabatina would not transgress Section 1103(a) of the Ethics Act unless: (1) he would be consciously aware of a private pecuniary benefit for himself, a member of his immediate family, or a business with which he or a member of his Hafner, 17 -564 September 15, 2017 Page 4 immediate family is associated; and (2) his actions) (use of authority of office or confidential information received by being in his pub is office) would constitute one or more s ecific steps to attain that benefit. See. Kistler v. State Ethics Commission, 610 Pa. 516, 528, 22 A.3d 223, 231 (2011). Finally, 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) Pennsylvania State Senator John Sabatina ( "Senator Sabatina" has been a Member of the Pennsylvania General Assembly since 2006; (2) in a pri% a capacity, Senator Sabatina is an attorney licensed to practice law in Pennsylvania; (3) Senator Sabatina has a law firm that he operates as a sole practitioner; (4) Senator Sabatina has an opportunity to become associated with a law firm ( "the Law Firm ") owned b his father; (5) the Philadelphia Parking Authority is one of the Law Firm's clients. (6) four entities, including the Law Firm, represent the Philadelphia Parkin Authority in matters related to the collection of fines from tickets issued for red light violations recorded by red light cameras; (7) the Law Firm was awarded a contract to represent the Philadelphia Parking Authority as to such matters through a public bidding process; 8) if Senator Sabatina would become associated with the Law Firm, he would not handle any legal matters for the Philadelphia Parking Authority in order to avoid even an appearance of impropriety; and (9) Senator Sabatina's compensation from the Law Firm would not be paid from any fees earned by the Law Firm from the Philadelphia Parking Authority, you are advised as follows. As a Member of the Pennsylvania State Senate, Senator Sabatina is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Senator Sabatina's father is a member of his "immediate family" as that term is defined in the Ethics Act. The Law Firm is a business with which Senator Sabatina's father is associated in his capacity as the owner. Section 1103(a) of the Ethics Act, pertaining to conflict of interest, imposes restrictions upon public officials and public employees. Section 1103(a) imposes restrictions upon Senator Sabatina in his capacity as a public official, rather than upon him in his private capacity as an attorney. Therefore, Section 1103(a) of the Ethics Act would not prohibit Senator Sabatina, in his private capacity as an attorney, from entering into the proposed association with the Law Firm. The Law Firm would be a business with which Senator Sabatina is associated —as the Ethics Act defines that term —to the extent that he would be a director, officer, owner, employee, or holder of a financial interest in the Law Firm under the proposed association with the Law Firm. In his public capacity as a Member of the Pennsylvania State Senate, Senator Sabatina could have a conflict of interest under Section 1103(a) of the Ethics Act in matters that would financially impact him or a business with which he or a member of his immediate family is associated, such as the Law Firm. However, to the extent the activities of a state legislator relate to "legislative actions" (introducing, considering, debating, voting, enacting, adopting, or approving legislation), they are constitutionally controlled and are exempt from the purview of the Ethics Act and the Commission. As for other actions, Senator Sabatina would not transgress Section 1103(a) of the Ethics Act unless: (1) he would be consciously aware of a private pecuniary benefit for himself, a member of his immediate family, or a business with which he or a member of his immediate family is associated; and (2) his actions) (use of authority of office or confidential information received by being in his pub is office) would constitute one or more specific steps to attain that benefit. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Hafner, 17 -564 September 15, 2017 Page 5 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 received at the Commission within thirty (3) days of the Advice pursuant to 51 Pa. Code § 73.2(h). The app received at the Commission by hand delivery, United delivery service, or by FAX transmission (717 - 787 - 0806). file such an appeal at the Commission within thirty (30) result in the dismissal of the appeal. Sincerely, Uv ( e r i PZin. Hittie Chief Counsel be actuall date -o " this eal may be States mail, Failure to days may