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HomeMy WebLinkAbout91-555 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 3, 1991 91 -555 Re: Conflict, Public Official /Employee, Member of General Assembly, Use of Senate Video Facility to Broadcast Public Affairs Television Talk Show This responds to your letters of April 29, 1991 and May 8, 1991, in which you requested confidential advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a Member of the Pennsylvania General Assembly with regard to using the Senate's video facility to produce for broadcast a public affairs television talk show, and with regard to soliciting sponsorships from corporations, associations and the like to cover the cost of purchasing air time required to broadcast this program. Facts: As an attorney representing a Member of the Pennsylvania General Assembly, you seek the advice of the State Ethics Commission. Your client wishes to broadcast a public affairs television talk show, which show would be produced by Commonwealth employees using the Senate's video facility. The subject matter for the talk show would be public affairs issues relating to all levels of government. Guests would include elected public officials and select public employees capable of informed discussion of issues facing local, state, and federal governments. The Senate's video facility which would be used to produce the show is a bipartisan production studio under the direction of the Chief Clerk of the Senate of Pennsylvania. The Page 2 Chief Clerk of the Senate has promulgated policies that require that the facility be used only to produce programming with a legislative purpose. You have submitted a one -page document entitled "Senate Video Facility" which sets forth the purpose and other matters relating to the use of the facility, which document is incorporated herein by reference. You state that the Member who is your client would be acting in the capacity of an elected public official in using the Senate's video facility to produce this talk show. To cover the cost of purchasing air time required to broadcast this program, the Member is proposing to solicit sponsorships from corporations, associations and the like. The extent of the broadcast area would, in part, depend on the results of your inquiry with this Commission. If the use of sponsors is permissible and the Member chooses to exercise this option, the entire district would be covered by the programming. However, if municipal access channels are relied upon, it is your best knowledge and belief that approximately 65 percent of the homes in the district receive cable television. You submit that there are two important and relevant facts to be noted. First, some cable television systems offer free air time for broadcasting public affairs programs, in effect sponsoring the shows. Second, you state that the Member is not a declared candidate for reelection at this time. Furthermore, the Member is contemplating ceasing such broadcasts after declaring a candidacy for reelection. Finally, you state that your client avers that he is not receiving any pecuniary benefit from this proposed activity. Based upon all of the above, you seek a confidential advice regarding the legality of the proposed conduct under the Ethics Law. Discussion: As a Member of the Pennsylvania General Assembly, your client is a public official as that term is defined under the Ethics Law, and hence he is subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. Page 3 The following terms are defined in the Ethics Law as follows: Section 2. 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. "Conflict" or "conflict of interest" 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 or 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. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. Turning to your specific inquiry, it appears that the proposed conduct of your client as a Member of the Pennsylvania General Assembly to utilize Commonwealth employees and the Page 4 Senate's video facility to produce for broadcast the above public affairs television talk show would not transgress the Ethics Law under the facts which you have presented. Section 3(a) of the Ethics Law prohibits conduct by a public official which would constitute a conflict of interest. However, based upon the submitted facts there would not be the requisite element of a "private pecuniary benefit" so as to constitute a conflict of interest as defined in the Ethics Law. With regard to soliciting sponsors to cover the cost of purchasing air time to broadcast this show, such would also be permissible based upon the express assumption that all such solicited funds would be expended upon the purchase of air time for the show, with no private pecuniary benefit to the Member, any of his immediate family members, or any business with which he or any of his immediate family members are associated. Thus, based upon the express assumption (and your affirmative representations) that there would be no private pecuniary benefit to the Member of the General Assembly whom you represent, any of the members of his immediate family, or any business with which he or any member of his immediate family is associated as defined under the Ethics Law, the proposed conduct would not transgress the provisions of the Ethics Law. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically, not addressed herein is the applicability of the Legislative Code of Conduct. Conclusion: As a Member of the Pennsylvania General Assembly, your client is a public official subject to the provisions of the Ethics Law. Your client, as a Member of the Pennsylvania General Assembly, would not transgress the Ethics Law by utilizing employees of the Commonwealth and the Senate's video facility under the facts as you have presented them, to produce for broadcast a public affairs television talk show. Solicitation of corporations, associations and the like for sponsorships to cover the cost of purchasing air time to broadcast the show would be permissible as well, as long as there would be no private pecuniary benefit for the Member, any of his immediate family members, or any business with which he or any of his immediate family members is associated. This advice is expressly conditioned upon your representations and the assumption that the proposed conduct would not result in any private pecuniary benefit to the Member of the General Assembly, any member of his immediate family, or any business with which he or any member of his immediate family is associated as defined Page 5 under the Ethics Law. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), 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, providing 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. Sincerely, / 1 1 ;t4Z40 4 . 0717e Vincent . Dopko, Chief Counsel