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HomeMy WebLinkAbout19-002 Confidential� f - 4 '. PHONE: 717 -783 -1610 STATE ETHICS COMMISSION FACSIMILE: 717- 787 -0806 TOLL FREE: 1 -800- 932 -0936 FINANCE BUILDING WEBSITE: www.othics.pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120 -0400 OPINION OF THE COMMISSION Before: Nicholas A. Colafella, Chair Mark R. Corrigan, Vice Chair Roger Nick Meanie DePalma Monique Myatt Galloway Michael A. Schwartz Shelley Y. Simms DATE DECIDED: 216119 DATE MAILED: 2/27/19 To the Requester: 19 -002 This Opinion is issued in response to your letter dated November 28, 2018, by which you requested a confidential advisory from this Commission. ISSUE: Whether, pursuant to Section 1105(b (7 of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. 1105(b)(7), u lie Official A would be required to provide disclosure on his Statement(s) of Financial Interests filed pursuant to the Ethics Act in relation to certain vacation expenses consisting of transportation, lodging and/or hospitality where: (1) such transportation, lodging and/or hospitality would be provided at the personal expense of a B of a (type of company ( "Company ") for an annual vacation at the 's vacation home; (2) Public Official A an the B have been close friends for over [number years, with such friendship commencing prior to Public Official A assuming C office; (3) the B is not a registered lobbyist and has never represented the Company in an matter before the [governmental body of Public Official A ( "Governmental Body D "); (4� with the sole exceptions of E and F pursuant to G, governmental Body D has no administrative interaction or involvement with the Company; and (5) none of the Hs has any regulatory or governmental oversight authority related to the Company's business activities. II. FACTUAL BASIS FOR DETERMINATION: You have been authorized by Public Official A to request a confidential advisory from this Commission on his behalf. You have submitted facts that may be fairly summarized as follows. Public Official A is I of [governmental body of Public Official A] ( "Governmental Body D" Public Official A has been close friends with a B of a [type of company] ( "Company ") for over [number] years, with such friendship commencing prior to Public Official A Confidential O inion, 19 -002 February 27, Page 2 assuming C office. The B is not a registered lobbyist and has never represented the Company in any matter before Governmental Body D. With the sole exceptions of E and F pursuant to G, Governmental Body D has no administrative interaction or involvement with the Company. Additionally, none of the Hs has any regulatory or governmental oversight authority related to the Company's business activities. For over [number] years, the families of Public Official A and the B have often traveled and vacationed together, and Public Official A, the B, and their spouses have annually flown to the vacation home owned by the B. Except for meals, which were paid for by Public Official A, all of Public Official A's and his spouse's travel, lodging costs and expenses associated with the annual vacation at the B's vacation home have been paid by the B from his personal funds ---not Company resources. The cost of the aforesaid travel and lodging is In excess of the reporting threshold of Section 1105(b)(7) of the Ethics Act. Based upon the above facts, you ask whether, pursuant to Section 1105(b)(7) of the Ethics Act, Public Official A would be required to provide disclosure on his Statement(s) of Financial Interests filed pursuant to the Ethics Act in relation to transportation, lodging and /or hospitality provided by the B for the aforesaid annual vacation at the B's vacation home. You state your view that based upon the statutory language of Section 1105(b)(7) of the Ethics Act, and based upon this Commission's decisions in Coe , Opinion 08-005, and Confidential Opinion, 16 -003, such transportation, lodging and—/or hospitality would not be received `in connection with" Public Official A's ublic office and therefore would not be subject to disclosure pursuant to Section 1105(b)7) of the Ethics Act. By letter dated December 4, 2018, you were notified of the date, time and location of the executive meeting at which your request would be considered. On Januaryry 29, 2019, this Commission received your Brief, in which you argue that Section 1105(b)(7) of the Ethics Act requires public officials to report the receipt of transportation, lodging and hospitality only if received "in connection with public office." Based upon the circumstances in this case, you assert that the aforesaid benefits received by Public Official A from the B are not "in connection with his public office" and are therefore not reportable on his Statement(s) of Financial Interests. At the executive meeting on February 6, 2019, a representative of your office appeared for the purpose of answering any questions of this Commission. Ill. DISCUSSION: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the 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, this 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. §§ 1107 10), (11). An advisory only affords a defense to the extent the requester has truthfu ly disc osed all of the material facts. Public Official A is a public official subject to the provisions of the Ethics Act. Section 1105(b)(7) of the Ethics Act provides: § 1145. 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: Confidential Opinion, 19 -002 February 27, 2019 Page 3 (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 em a ment 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)(7) (Emphasis added). In applying Section 1105(b)(7) of the Ethics Act to the submitted facts, we determine that the vacation expenses about which you have inquired would not be considered to have been received "in connection with" Public Official A's public office, but rather, would be considered to have been received based upon the longstanding personal friendship between Public Official A and the B. This determination is based upon the submitted facts which indicate that: (1) the aforesaid friendship pre -dates the time at which Public Official A first assumed C office; (2) the expenses in question are paid from the B's own personal funds, not Company resources; (3) the B is not a registered lobbyist and has never represented the ComC ny in any matter before Governmental Body D; (4) the involvement Governmental Body as with the Company is limited to performing ministerial tasks as to routine, uncontested atters; and (5) none of the Hs has any regulatory or governmental oversight authority related to the Company's business activities. Therefore, based upon the submitted facts, you are advised that Section 1105(b)(7) of the Ethics Act would not require Public Official A to provide disclosure on his Statements of Financial Interests filed pursuant to the Ethics Act in relation to transportation, lodging and /or hospitality provided by the B for the aforesaid annual vacation at the B's vacation home as long as such expenses would be paid from the B's own personal funds - -not Company resources- -and would be .solely based upon the B's personal friendship with Public Official A. Funds would be considered personal funds for this purpose if they would be considered personal funds for tax purposes. Cf., Confidential Opinion, 16 -003; Confidential Opinion, 16 -001. 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. IV. CONCLUSION: Public Official A 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. Based upon the submitted facts that: (1) Public Official A is I of [governmental body of Public Official Al ( "Governmental Body D "); (2) Public Official A has been close friends with a B of a type o company1( "Company ") for over [number] years, with such friendship commencing prior to Public Official A assuming C office; (3) the B is not a registered lobbyist and has never represented the Company in any matter before Governmental Body D; (4) with the sole exceptions of E and F pursuant to G, Governmental Body D has no administrative interaction or involvement with the Company; (5) none of the Hs has any regulatory or governmental oversight authority related to the Company's business activities; (6) for over [number] years, the families of Public Official A and the B have often traveled and vacationed together, and Public Official A, the B, and their spouses have annually flown to Confidential Opinion, 19 -002 F_eUr_u_a_ry_2T, Page 4 the vacation home owned by the B; (7) except for,meals, Official A, all of Public Official A's and his spouses travel associated with the annual vacation at the B's vacation h from his personal funds —not Company resources; and (8) and lodging is in excess of reporting threshold of Secti you are advised as follows. which were paid for by Public , lodging costs and expenses ome have been aid by the B the cost of the aforesaid travel on 1105(b)(7) of the Ethics Act, Section 1105(b)(7) of the Ethics Act, 65 Pa.C.S. § 1105 %(7), would not require Public Official A to provide disclosure on his Statements of FFinancial Interests filed pursuant to the Ethics Act in relation to transportation, lodging and/or hospitality provided by the B for the aforesaid annual vacation at the B's vacation home as long as such expenses would be paid from the B's own personal funds - -not Company resources- -and would be sole) based upon the B's personal friendship with Public Official A. Funds would be considered personal funds for this purpose if they would be considered personal funds for tax purposes. The propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(10) of the Ethics Act, the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. By the Commission, Nic o s .Oolafella, Chair