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HomeMy WebLinkAbout86-566 BinnsJames J. Binns, Esquire 300 Walnut Street Philadelphia, PA 19106 Dear Mr. Binns: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 May 28, 1986 ADVICE OF COUNSEL Re: State Athletic Commission, Member, Fund Raising 86 - 566 This responds to your letter of April 29, 1986, wherein you requested the advice of the State Ethics Commission. Issue: Whether a member of the Pennsylvania State Athletic Commission may he involved in soliciting contributions for a boxing association. Facts: You currently serve as the Chairman of the Pennsylvania State Athletic Commission. You are also involved in the boxing industry and are a practicing attorney in the Commonwealth of Pennsylvania. In this respect, you are counsel for the World Boxing Association. In this capacity, you have been requested to approach several boxing promoters in order to solicit contrihutions toward the annual association's convention. You advise that these promoters have contributed to the association's convention for a number of years. You advise that you will he soliciting such contrihutions in your capacity as counsel to the World Boxing Association. You advise that this activity in no way relates to your functions as chairman of the Pennsylvania State Athletic Commission. You have requested the advice of the State Ethics Commission in relation to the above contemplated activity. Discussion: Initially, we should note that the State Ethics Commission may only address the issue that you have presented in relation to the Pennsylvania State Ethics Act. The Commission may not address your question under other codes of conduct such as the Governor's Code of Conduct or any internal code of conduct applicable to the Department of State. James J. Binns, Esquire May 28, 1986 Page 2 As a member of the Pennsylvania State Athletic Commission, you are a public official within the purview of the State Ethics Act. 65 P.S. §402. As such, your conduct must conform to the requirements of the State Ethics Act. Generally, the State Athletic Commission is responsible for administering the 1 aws al 1 owi ng and regulating boxing, sparring and wrestling matches i n the Commonwealth of Pennsylvania. 71 P.S. §663. Such regulations include the issuance, revocation and /or suspension of licenses for promoters, managers, trainers, boxers, referees, judges and other officials involved in these activities. 4 P.S. §30.304. Generally, the State Ethics Act provides as follows: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Within the above provision of law, no public official may use their public position in order to obtain a financial gain for any business with which they are associated or for themselves or a member of their immediate family. Such a public official may not use confidential information for similar purposes. As such, you could not use your position as a member of the State Athletic Commission in order to benefit the World Boxing Association, for which you are counsel. In the instant situation, it does not appear as though this particular provision of the State Ethics Act would be applicable in that you are not taking any action as a public official on behalf of this association. You will be acting in a private capacity as this association's counsel on behalf of the association in their endeavors to hold an annual convention. In this respect, however, you may not use your public position, as chairman of the State Athletic Commission, in order to in any way assist you in your solicitation for contributions. Such must be done in your private capacity and without any reference to your position as chairman of the State Athletic Commission. In addition to the foregoing, because of the wide - ranging duties and responsibilities of the State Athletic Commission in relation to boxers and promoters, it is advised that if in the future any issue comes before the Pennsylvania State Athletic Commission in relation to individuals from whom you solicit contributions or in relation to any of the individual boxers that these promoters represent, you must abstain completely from participating in the Commission's activity in relation thereto. In addition to your abstention in such matters, you must publicly state the reason for your abstention and must have such publicly recorded in appropriate commission minutes. In this way, you will not be participating in any activity as a commission member involving individuals from whom you have privately solicited contributions. James J. Binns, Esquire May 28, 1986 Page 3 In addition to the foregoing, the State Ethics Act also provides that the Commission may address other areas of possible conflicts. 65 P.S. §403(d). The parameters of the activities encompassed by this provision of law generally can be determined by reviewing the purpose and intent of the act as set forth in Section 1. 65 P.S. §401. Pursuant to that provision of law, publi c offici als are to ensure that thei r fi nanci al i nterests do not confli ct with the public trust. As such, a conflict will be developed at any point where an individual represents two or more persons who's interests are adverse. Alfano, 80 -0078. As a result of the above provisons of law, this Commision has, on a number of occasions in the past, determined that it would be a conflict for an individual on a licensing or examining board to also be a member of the State Association which represents the individuals who are so licensed or regulated. See, Vavro, 79 -074; Allen /Lutton, 79 -024, Fritzinger, 80 -008. In addition to the foregoing, the Commission has determined that service by a state official as an agent or official of a national professional association or organization would not seem to present the same concerns as service on a state level would. The national organization generally would operate at the national level and represent the interest of the professionals nationwide whereas the board and the professional association at a state level would represent their interest before the specific examining board of which the official is a member. Thus, the Ethics Act would not prohibit such service at the national level. See, Miller, 82 -575. Thus, your service in this capacity, as set forth in the facts, would not seem to be in contradiction to the State Ehtics Act as long as you are not representing these individuals at the state level and as long as you are not reviewing, as a public official, any of the activities of these specific individuals or of the individual boxers whom they represent. Conclusion: The State Ethics Act generally places no per se prohibition upon a member of the State Athletics Commission from soliciting contributions in his private capacity as counsel to the World Boxing Association from private boxing promoters. As a public official, you must conform your activities to the requirements of the State Ethics Act as follows: 1. You may not use your public office or your position as Chairman of the State Athletic Commission in relation to such solicitations. 2. In the event that any of the individuals from whom you solicit contributions or to have cases or matters presented to the State Athletic Commission, you must abstain from participation therein. You must also publicly record the reason for your abstention. 3. Such abstention is similarly required in relation to matters coming before the State Athletics Commission that relates to individuals represented by such promoters. 4. The Commission generally will not interpret other provisions of law that may be applicable in relation to the instant situation. James J. Binns, Esquire May 28, 1986 Page 4 5. You should be aware of Section 1 of the State Ethics Act which requires that the activities of a public official do not conflict with the public trust and should conform your conduct in accordance therewith. 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, providi ng 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. Si nc e- n J. Co r no General 'ounsel