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Home My WebLink About91-566 HarperThe Honorable Ruth B. Harper Pennsylvania State Representative 196th Legislative District 1427 W. Erie Avenue Philadelphia, PA 19140 Re: Conflict, Public Official, General Assembly, Representative, Legislative District Office, Rental of Own Building Dear Ms. Harper: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 • HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 20, 1991 91 -566 This responds to your letter of July 1, 1991, in which you requested advice from the State Ethics Commission. Issue: Whether a member of the General Assembly, under the Public Official and Employee Ethics Law, may charge his legislative district account with rent for a district office in a building which the member owns. Facts: You serve as an elected member of the Pennsylvania House of Representatives. You are also the owner of .a property located at 1427 West Erie Avenue, Philadelphia, Pennsylvania where your district office is and has been located for over fourteen years. You seek the advice of the State Ethics Commission as to whether, as a member of the House of Representatives, you may charge your legislative district account for rent for a district office in this building which you own. You believe that having your district office in its present location in your building has, over the years, saved the Commonwealth money. First, you note that the $400.00 rent that you have charged for the district office is $300.00 or $400.00 less than any other location that you could possibly find in your district. Second, you state that the north Philadelphia district is in a high crime rate area. The iron bars on your windows and heavy steel doors have thwarted several burglary attempts. Thus, you believe that remaining in your current location has saved the Commonwealth and yourself loss of property through theft or vandalism. Third, your district office is centrally located in The Honorable Ruth B. Harper August 20, 1991 Page 2 your district, near bus and trolley routes, which makes it convenient for your constituents. You additionally note your belief that the Ethics Commission should have looked at each House member's rental situation on a case -by -case method, not as a whole. Based upon all of the above, you request an advisory opinion regarding the rental of your district office. Discussion: As an elected member of the Pennsylvania House of Representatives, you are a public official as that term is defined under the Ethics Law, and hence you are 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. 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. The Honorable Ruth B. Harper August 20, 1991 Page 3 "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 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. Turning to your specific inquiry, it is noted that the Commission has clearly determined that Section 3(a) of the Ethics Law restricts a member of the General Assembly from charging his legislative district account for rent for a district office in a building which the member owns. Cappabianca, Opinion 89- 014 -R. As set forth in Cappabianca, supra, there is no doubt that the rental of the district office is an authorized expense for an elected Representative, for which expense funds are allocated. The decision as to where the legislative office will be located rests solely with the Legislator and is made in that capacity. Cappabianca, 89 -014 -R at 5 -6. Thus, in deciding where the legislative district office will be located, a Legislator uses the authority of his official position. If the Legislator chooses his own rental property for his legislative district office, he is clearly using the authority of his public office to obtain a private pecuniary benefit. Cappabianca, Opinion 89-014 - R at 6 -7. As the Commission has duly noted: Such benefit is a financial gain which is not provided in law because there is no authorization in the Public Official Compensation Law for the resultant private pecuniary benefit. In fact, it may be argued that such income is prohibited by law since [the Public Official Compensation Law, Act 39 of 1983, 65 P.S. Section 366.1 et seg.] states that "no other compensation shall be allowed whatsoever." Id. at 7. Regarding your belief that renting your own property for your district office has saved the Commonwealth money, the Ethics Law prohibitions against "conflicts of interest" do not contain any exclusions which would permit the use of public office to obtain a private pecuniary benefit, as long as the The Honorable Ruth B. Harper August 20, 1991 Page 4 governmental body may also incidentally benefit in some fashion. Further, as noted above in Cappabianca, supra, such use of authority of office results in a private pecuniary benefit for yourself. As the Commission stated in Cappabianca: We believe that this decision will further insure that the private financial interests of public officials will not conflict with the public trust. The activities in question thus are prohibited by Section 3(a) of the Ethics Law. We are mindful of the fact that this decision may in some cases result in a greater capital outlay for office space. We, however are duty bound to review such questions under the provisions of the Ethics Law and interpret said Law in a manner that is consistent with the clear language thereof and the legislatively stated purpose as noted above. Id., Opinion 89 -014 -R at 9. You suggest that each House member's rental situation should be considered on a case -by -case basis. Certainly any House member may seek the advice of this Commission and present the facts and circumstances surrounding such issues in his or her individual case. However, none of the facts which you have presented would distinguish your case from the Cappabianca holding, supra. Furthermore, the Ethics Law must be uniformly applied, and this Commission does not have the power to carve out exceptions to the Ethics Law which do not have any statutory basis. 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 General Assembly, you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would restrict you from charging your legislative district account for rent for a district office in a building which you own. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. The Honorable Ruth B. Harper August 20, 1991 Page 5 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. such. This letter is a public record and will be made available as 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 §2.12. Sincerely, ceVIA Vincent . Dopko, Chief Counsel