Loading...
HomeMy WebLinkAbout19-003 Confidentialy PHONE: 717- 783 -1610 STATE ETHICS COMMISSION FACSIMILE: 717- 787 -0806 TOLL FREE: 1- 800 - 932 -0936 FINANCE BUILDING WEBSITE: www.ethics,12a,goy 613 NORTH STREET, ROOM 309 HARRISBURG, RA 17120 -0400 OPINION OF THE COMMISSION Before: Nicholas A. Colafella, Chair Mark R. Corrigan, Vice Chair Roger Nick Melanie DePalma Monique Myatt Galloway Michael A. Schwartz DATE DECIDED: 216119 DATE MAILED. 2/27119 19 --003 To the Requester: This Opinion is issued in response to our letter dated November 26, 2018, by which you requested a confidential advisory from this Commission. 1. ISSUE: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon a Member of the Pennsylvania General Assembly ( "State Legislator") -- specificallyy aMember of Chamber A--with regard to serving on the Board of Directors of a charitable [type of private entity] ( "B ") and/or soliciting private donors to contribute to such B; and if the State Legislator would be permitted to solicit private donors to contribute to the B, whether he may do so: (1) Using Chamber A letterhead or stationery bearing the seal of the Commonwealth or Chamber A - -the printing and distribution of which would be entirely paid for with non - taxpayer funds - -or otherwise identifying himself in such solicitations as a State Legislator; or (2) Using social media provided no taxpayer resources would be used. 11. FACTUAL BASIS FOR DETERMINATION: You have been authorized by the Honorable [name] ( "State Legislator C "), who is a Member of Chamber A, to request a confidential advisory from this Commission on his behalf. You have submitted facts that may be fairly summarized as follows. In a private capacity, State Legislator C is a D. State Legislator C wishes to [engagge in certain activities with] a charitable [type of private entity] ( "B "). The B would be incorporated in Pennsylvania by a private citizen who is not an immediate family member of State Legislator C. The B would solicit contributions from individuals and companies to create an E from which the B would make grants to [certain types of grant recipients]. Funds for the B would be raised through private contributions. The B would not seek any Confidential Opinion, 19 -003 February 7, Page 2 city, state or federal government grants or taxpayer funds. The B would have a Board of Directors ( "Board ") and eventually paid staff as funds would allow. Board members would be selected from individuals residing or working in [geographical location]. Board members could be reimbursed for reasonable actual expenses as funds would permit, but they would not be compensated for service as Board members. State Legislator C would help attract Board members and staff and would also help to solicit private donations to the B. Based upon the above facts, you ask whether State Legislator C would be permitted to serve on the Board and/or to solicit private donors to contribute to the B. If State Legislator C would be permitted to solicit private donors to contribute to the B, you ask whether he may do so: (1) Using Chamber A letterhead or stationery bearing the seal of the Commonwealth or Chamber A- -the printing and distribution of which would be entirely paid for with non- taxpayer funds - -or otherwise identifying himself in such solicitations as a State Legislator; or (2) Using social media provided no taxpayer resources would be used. 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. At the executive meeting on February 6, 2019, you appeared, together with another representative from your office, for the purpose of answering any questions of this Commission. You stated that the purpose of the B would be to help generate F in [geographical location]. You confirmed that this Commission's advisory Opinion is to be specifically limited to addressing State Legislator C's potential prospective service as a member of the Board only, and the underlying issues you have presented as set forth in paragraphs (1) and (2) above, and that it is your understanding /belief that State Legislator C would not hold any ownership interest in the B and would not serve as an officer or employee of the B. 111, 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 tot 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 truthfully disclosed all of the material facts. As a Pennsylvania State Legislator, State Legislator C 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. Confidential Opinion, 19 -003 February 27, Page 3 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 conflict of interest. Use by a public official or public employee 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. We note that to the extent the activities of a 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 State Ethics Commission. Confidential Opinion, 05 -002; Corrigan, Opinion 87 -001. The questions that you have posed do not pertain to "legislative actions," but rather, to State Legislator C's prospective activities of possibly serving on the Board of the B and soliciting private donors to contribute to the B. You are advised that the Ethics Act would not prohibit State Legislator C from serving on the Board of the B. If State Legislator C would serve on the Board of the B, the B would be considered a business with which State legislator C is associated. See, Rendell v. State Ethics Commission, 603 Pa. 292, 983 A.2d 708 (2009) (Holding that He Ethics Act's definition of the term usiness" includes non - profit entities). If State Legislator C would not serve on the Board of the B, the B would not be considered a business with whichStta�te Legislator C is associated, as there is no basis in the submitted facts to conclude that State Legislator C's relationship with the B otherwise would fall within the statutory definition of the term "business with which he is associated," 65 Pa.C.S. § 1102. Confidential_ Opinion, 19 -003 February 7 2019 Page 4 Regardless of whether he would serve as a Board member, State Legislator C would be permitted to solicit private donors to contribute to the B. However, if State Legislator C would be a Board member, he would not be permitted to use his status as a State Legislator as to such solicitations. Cf., Confidential Opinion, 05 -002. This is because using his status as a State Legislator to solicit donations to a business with which he is associated, specifically, the B, would complete the elements for a violation of Section 1103(a) of the Ethics Act. Therefore, while serving as a Board member, State Legislator C would not be permitted to identify himself in such solicitations as a State Legislator, nor would he be permitted to use Chamber A letterhead or stationery bearing the seal of the Commonwealth or Chamber A for the solicitations, even if the printing and distribution of such would be entirely paid for with non - taxpayer funds. On the other hand, if State Legislator C would not be a Board member, such that the B would not be a business with which he is associated, Section 1103(a) of the Ethics Act would not prohibit him from identifying himself in such solicitations as a State Legislator or using Chamber A letterhead or stationery bearing the seal of the Commonwealth or Chamber A under the submitted facts that the printing /distribution of same would be paid for entirely with non- taxpayer funds. Finally, Section 1103(a) of the Ethics Act would not prohibit State Legislator C from using social media to solicit donations to the B under the submitted facts that no taxpayer resources would be used. 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 otther than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the Legislative Code of Ethics, 46 P.S. § 143.1 et seq., or the Rules of Chamber A. IV. CONCLUSION: As a Member of the Pennsylvania General Assembly ( "State Legislator")- - specifically a Member of Chamber A- --the Honorable [name 1 ( "State Legislator C ") is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seg. Based upon the submitted facts that: (1) in a private capacity, State Legislator U is a D; (2) State Le islator C wishes to [engage in certain activities with] a charitable [type of private enity] ( °B "); (3) the B would be incorporated in Penns Ivania by a private citizen who is not an immediate family member of State Legislator C, �4) the B would solicit contributions from individuals and companies to create an E from which the B would make grants to [certainty es of grant recipients]; (5) funds for the B would be raised through private contributions; (6 the B would not seek any cit y state or federal overnment grants or taxpa er funds• (7 he B would have a Board of Directors ( "Board ") and eventually paid staff as funds would allow; (8) Board members would be selected from individuals residing orworking in [geographical location]; (9) Board members could be reimbursed for reasonable actual expenses as funds would permit, but they would not be compensated for service as Board members; (10) State Legislator C would help attract Board members and staff and would also help to solicit private donations to the B; (11) the purpose of the B would be to help generate F in [geographical location]; and (12) this Commission's advisory Opinion is to be specifically limited to addressing State Legislator C's potential prospective service as a member of the Board only, and the underlying issues you have presented as set forth herein, and it is yyour understandinglbelief that State Legislator C would not hold any ownership interest in tf�e B and would not serve as an officer or employee of the B, you are advised as follows. The Ethics Act would not prohibit State Legislator C from serving on the Board of the B. if State Legislator C would serve on the Board of the B, the B would be considered a business with which State Legislator C is associated. If State Legislator C would not Confidential Opinion, 19 -003 February 27, Page 5 serve on the Board of the B, the B would not be considered a business with which State Legislator C is associated, as there is no basis in the submitted facts to conclude that State Legislator C's relationship with the B otherwise would fall within the statutory definition of the term "business with which he is associated," 65 Pa.C.S. § 1102. Regardless of whether he would serve as a Board member, State Legislator C would be permitted to solicit private donors to contribute to the B. If State Legislator C would be a Board member, he would not be permitted to use his status as a State Legislator as to such solicitations. Therefore, while serving as a Board member, State Legislator C would not be permitted to identify himself in such solicitations as a State Legislator, norwould he be permitted to use ChamberA letterhead orstationery bearing the seal of the Commonwealth or Chamber A for the solicitations, even if the printing and distribution of such would be entirely paid for with non - taxpayer funds. If State Legislator C would not be a Board member, such that the B would not be a business with which he is associated, Section 1103(a) of the Ethics Act would not prohibit him from identifying himself in such solicitations as a State Legislator or using Chamber A letterhead or stationery bearing the seal of the Commonwealth or Chamber A under the submitted facts that the printing /distribution of same would be paid for entirely with non- taxpayer funds. Finally, Section 1103(a) of the Ethics Act would not prohibit State Legislator C from using social media to solicit donations to the B under the submitted facts that no taxpayer resources would be used. The propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 11070 0) 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, Ni h a . 4Colafe11a, Chair Commissioner Shelley Y. Simms did not participate in this matter.