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HomeMy WebLinkAbout19-503 ConfidentialPHONE: 717- 783 -1610 TOLL FREE: 1 -800 -932 -0936 To the Requester: ^a 1 STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120 -0400 ADVICE OF COUNSEL February 1, 2019 FACSIMILE: 717- 787 -0806 WEBSITE: www.ethics.pa.gov 19.503 This responds to your letter dated December 12, 2018, received January 2, 2019, 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 PaT-.S. § 1101 et seq., would impose prohibitions or restrictions upon a Member of the A with regard t&-accepting a position of employment with a B, where such position would involve working with the C and the D of the B to E Fs to G H of the B. Facts: You request a confidential advisory from the Commission on behalf of a em er of the A (the "State Legislator "). You have submitted facts that may be fairly summarized as follows. The State Legislator, who has served on the 1, has an opportunity for employment with a B. The B J Ks and Ls. The State Legislator's proposed position with the B would involve working with the C and the D of the B to E Fs to G H of the B. The B is M as an N in Pennsylvania, and the B has retained Os who are M in Pennsylvania. You state that in the proposed position with the B, the State Legislator would not engage in any P as that term is defined in Pennsylvania's Q [cite]. Based upon the above submitted facts, you ask whether the Ethics Act would impose any prohibitions or restrictions upon the State Legislator with regard to accepting the proposed position with the B. 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 Confidential Advice, 19 -503 February 1, 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. The State Legislator is a public official subject to the provisions of the Ethics Act. Section 1103(a) of the Ethics Act provides: § 1143. 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 "Gonflict 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. 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 Confidential Advice, 19 -503 February 1, Page 3 for the private pecuniary enefit 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 officiallpublic 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. Section 1103(a) of the Ethics Act, pertaining to conflict of interest, imposes restrictions upon publlic officials and public employees. Section 1103(a) imposes restrictions upon the State Legislator in his capacity as a ublic official, rather than upon. him in his private capacity. Therefore, Section 1103(a of the Ethics Act would not prohibit the State Legislator, in his private capacity, ram accepting the proposed pposition with the B. If the State Legislator would accept the proposed position with the B, the B would be a business with which the State Legislator is associated in his capacity as an employee. Pursuant to Section 1103(a) of the Ethics Act, in his public capacity as a Member of the A, the State Legislator could have a conflict of interest in matters that would financially impact him or the B. However, to the extent the activities of a state legislator relate to "legislative actions" (introducing, considering, debatingg, voting, enacting, adopting, or approving legislation), they are constitutionally controlled and are exem t from the purview of the Ethics Act and the Commission. See, Mann, Opinion 07� -00�; Confidential Opinion, 05 -002; Corri aD, Opinion 87 -001. As other actions, the State Legislator would not transgress Section 1103(a) of the Ethics Act unless: (1) he would be consciously aware of a private pecuniary benefit for himself or the B; and (2) his action(s) (use of authority of office or confidential information received by being in his public office) would constitute one or more specific steps to attain that benefit. See, Kistler v. State Ethics Commission, 610 Pa. 516, 528, 22 A.3d 223, 231 (2011). Lastly, the proppriety 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) a Member of the A (the tats Legislator"), who has served on the I, has an opportunity for employment with a B; (2) the B J Ks and Ls; (3) the State Legislator's pproposed position with the B would involve working with the C and the D of the B to E Fs to G H of the B; (4) the B is M as an N in Pennsylvania, and the B has retained Os who are M in Pennsylvania; and (5 ) in the proposed position with the B, the State Legislator would not engage in any P as that term is defined in Pennsylvania's Q [cite], you are advised as follows. The State Legislator is a ublic official subject to the provisions of the Public Official and Employee Ethics Ac ( "Ethics Act "), 65 Pa-C.S. §� 1101 et se . Section 1103(a) of the Ethics Act, pertaining to conflict of interest, imposes restrictions upon public officials and public employees. Section 1103(x) imposes restrictions upon the State Legislator in his capacity as a public official, rather than upon him in his private capacity. Therefore, Section 1103(a) of the Ethics Act would not prohibit the State Legislator, in his private capacity, from accepting the proposed position with the B. If Confidential Advice, 19 -503 February 1, Page 4 the State Legislator would accept the proposed position with the B, the B would be business with which the State Legislator is associated in his capacity as an employee. Pursuant to Section 1103(a) of the Ethics Act, in his public capacity as a Member of the A, the State Legislator could have a conflict of interest in matters that would financially impact him or the B. However, to the extent the activities of a state legislator relate to "legislative actions" (introducing, considering, debatingg, voting, enacting, adopting, or approving legislation), they are constitutionally contro?led and are exempt from the purview of the Ethics Act and the Commission. As for other actions, the State Legislator would not transgress Section 1103(a) of the Ethics Act unless: (1) he would be consciously aware of a private pecuniary benefit for himself or the B; and (2) his action(s) (use of authority of office or confidential information received by being in his public 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. 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 and 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 be actually received at the Commission within thirty (30) days of the date of this vice 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. Sincerely, X dI Robin M. Hittie Chief Counsel