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HomeMy WebLinkAbout19-513 HafnerPHONE: 717 -783 -1610 TOLL FREE: 1 -800- 932 -0936 + 1 l STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120 -0400 ADVICE OF COUNSEL March 15, 2019 To the Requester; C.J. Hafner, II Chief Counsel Democrat Legal Staff Senate of Pennsylvania Dear Mr. Hafner: FACSIMILE: 717- 787 -0806 WEBSITE: www.ethios.pajov 19 -513 This responds to your letter dated February 11, 2019, 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 �a, .S. § 1101 et she ., would impose prohibitions, restrictions, or requirements upon a Pennsylvania State Sen a tor in his private ca acity as an attorney �s employed b a law firm in an of-counsel capacity, with regardpto accepfiing from the law firm the donation of the use of a law firm conference room to hold an annual seminar that would be hosted by the Pennsylvania State Senator and would inform small and medium -sized businesses located in his legislative district about state and local programs designed to assist businesses in dealing with various topics and issues. Facts: You have been authorized by Penn syylvania State Senator Larry Farnese enator Farnese ") to request an advisory from tf�e Commission on his behalf. You have submitted facts that may be fairly summarized as follows. In a private capacity, Senator Farnese is an attorney licensed to practice law in Pennsylvania. Senator Farnese is employed by a Philadelphia law firm (the "Law Firm ") in an of- counsel capacity. For the first four years after Senator Farnese was initially elected to the Pennsylvania Senate, he hosted an annual seminar ( "Annual Seminar") for small and medium -sized businesses located in his legislative district. The purpose of the Annual Seminar was to inform the businesses about state and local programs designed to assist businesses in dealing with various topics and issues. The Annual Seminar was conducted by panels or presenters, and the Annual Seminar dealt with two issues or topics and lasted approximately one and one -half hours. Various organizations, including but not limited to law firms and private institutions of higher education, donated space to hold the Annual Seminar. Senator Farnese was not associated with any of the organizations that donated space for the Annual Seminar. Hafner, 19 -513 M-a rcT15, 2019 Page 2 Senator Farnese wants to resume hosting the Annual Seminar. Instead of various organizations donating s ace for the Annual Seminar, the Law Firm would donate the use of a Law Firm conference room to hold the Annual Seminar. Based upon the above submitted facts, the question that is presented is whether the Ethics Act would impose any prohibitions, restrictions, or requirements upon Senator Farnese with regard to accepting the Law Firm's donation of the use of a Law Firm conference room to hold the Annual Seminar. Discussion: It is initiall 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, 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. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all of the material facts. As a Member of the Pennsylvania Senate, Senator Farnese 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 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, Hafner, 19 -513 arc 15, 2019 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. 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 officiallpublic employee �s prohibited from using the authority of public officelemployment or confidential information received by holding such a public position for the private pecuniaryry benefit of the public official/public employee himself, any member of his immediate familyy, or a business with which he or a member of his immediate family is associated. To the extent the activities of a state legislator relate to "legislative actions" introducing, considering, debating, voting, enacting, adopting, or approving legislation, they are cons titutional)y 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. Per Commission precedent, the Ethics Act does not prohibit a public official/public employee from accepting "no- strings - attached" gifts, transportation, lodging or hospitality also generically referred to herein as "items') from a donor. Cf., Como err, Opinion 92 -009. Depending upon the value of the item s) received, the public official or public employee may be required to disclose his receip of such item(s) on his Statement of Financial Interests pursuant to Sections 1104 and 1105 of the Ethics Act, 65 Pa.C.S. §§ 1104, 1105. Subject to certain statutory exceptions not applicable to this matter, Section 1105(b)(6) of the Ethics Act requires the filer to disclose on the Statement of Financial Interests the name and address of the source and the amount of any gift or gifts valued in the aggregate at $250 or more and the circumstances of each gift Having established the above general principles, you are advised as follows. The Law Firm is a business with which Senator Farnese is associated in his capacity as an employee. The Ethics Act would not prohibit Senator Farnese, in his capacity as a state legislator, from accepting the Law Firm's donation of the use of a Law Firm conference room to hold the Annual Seminar. (in this regard, it is noted that there is no indication in the submitted facts that any private pecuniary benefit would be realized by the Law Firm in relation to such a donation.) The Law Firm's donation of the use of a Law Firm conference room to hold the Annual Seminar would constitute a gift to Senator Farnese. To the extent the reporting threshold of Section 1105(b)(6) of the Ethics Act would be met, Senator Farnese would be required to disclose such gs on his annual Statement of Financial Interests filed pursuant to the Ethics Act. Cf., oilliams, Advice 99 -590; Williams, Advice 99 -590C. Finally, the propriety of the propose d Ethics Act. The applicability of any other code of conduct other than the Ethics Act involve an interpretation of the Ethics Act. conduct has only been addressed under the statute, code, ordinance, regulation or other has not been considered in that thev do not Conclusion: As a Member of the Pennsylvania Senate, State Senator Larry ar F e senator Farnese ") is a public official subject to the previsions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et se q: Based upon the submitted facts that: (1) in a private capacity, Senator Farnese is an attorney licensed to practice law in Pennsylvania; (2) Senator Famese is employed by a Philadelphia law firm (the "Law Firm ") in an of- counsel capacity; (3) for the first four Hafner, 19 -513 Wa-r-c-Fr 15, 2019 Page 4 years after Senator Farnese was initially elected to the Pennsylvania Senate, he hosted an annual seminar ( "Annual Seminar ") for small and medium -sized businesses located in his legislative district; (4) the purpose of the Annual Seminar was to inform the businesses about state and local programs designed to assist businesses in dealing with various topics and issues; (5) the Annual Seminar was conducted by panels or presenters, and the Annual Seminar dealt with two issues or topics and lasted approximately one and one -half hours; (6) various organizations, including but not limited to law firms and private institutions of higher education, donated space to hold the Annual Seminar; (7) Senator Farnese was not associated with any of the organizations that donated space for the Annual Seminar; (8) Senator Farnese wants to resume hosting the Annual Seminar; and 9) instead of various organizations donating space for the Annual Seminar, the Law irm would donate the use of a Law Firm conference room to hold the Annual Seminar, you are advised as follows. The Law Firm is a business with which Senator Farnese is associated in his capacity as an employee. The Ethics Act would not prohibit Senator Farnese, in his capacity as a state legislator, from accepting the Law Firm's donation of the use of a Law Firm conference room to hold the Annual Seminar. (In this regard, it is noted that there is no indication in the submitted facts that any private pecuniary benefit would be realized by the Law Firm in relation to such a donation.) The Law Firm's donation of the use of a Law Firm conference room to hold the Annual Seminar would constitute a gift to Senator Farnese. To the extent the reporting threshold of Section-1105(t)(6) of the Ethics Act would be met, Senator Farnese would be required to disclose such gift on his annual Statement of Financial Interests filed pursuant to the Ethics Act. 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 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 be actually received at the Commission within thirty (30) days of the date of tT s vice ursuant to 51 Pa. Code § 112(h). The appeal may be received p at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717 - 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, -r , XR�oWn M. Hittie Chief Counsel