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HomeMy WebLinkAbout93-569 PorterfieldThe Honorable Eugene E. Porterfield Senate of Pennsylvania Senate Post Office Harrisburg, PA 17120 -0030 Re: Conflict, Public Official /Employee, Private Employment or Business, Ownership of Liquor License. Dear Senator Porterfield: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 4, 1993 93 -569 This responds to your letter of May 26, 19 9 3 , in which you requested advice from the State Ethics Commission. Issue: Whether a Member of the Senate of Pennsylvania is prohibited or restricted by the Public Official and Employee Ethics Law from working with, being employed by or associated with a business /person in a private capacity in addition to public service. Pacts: You are a Member of the Senate of Pennsylvania representing the 39th Senatorial District. You have requested an advisory from the State Ethics Commission as to whether the Public Official and Employee Ethics Law presents any prohibitions or restrictions on your prospective ownership, either fully or partially, of a Pennsylvania liquor license. Discussion: As Member of the Senate of Pennsylvania, 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: The Honorable Eugene E. Porterfield June 4, 1993 Page 2 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 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 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. "Financial interest." Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. 65 P.S. 5402. 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 anything 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 The Honorable Eugene E. Porterfle1ti June 4, 1993 Page 3 will be any transgression thereof but merely to provide a complete response to the question presented. In applying the above provisions of the Ethics Law to the instant matter, it is noted that Section 3(a) of the Ethics Law does not prohibit public officials /employees from engaging in outside business activities or employment; however, public officials /employees are prohibited from using the authority of office or confidential information received as a result of holding such office for private pecuniary benefit. Private business activities cannot conflict with public duties. Thus, public officials /employees are prohibited from performing private business using government facilities or personnel and soliciting or promoting private business during government working hours. The general rule is that when a private employer or business has a matter pending before the public Official's governmental body or if that individual as part of such official duties must participate, review or pass upon that . matter, a conflict would exist. Miller, Opinion No. '89-024. In those instances, it would be necessary that the public official be removed from that process. In such cases as noted above, Section 3(j) of the Ethics Law would require not only that the public official abstain from participation but also file a written memorandum to that affect with the person recording the minutes. As a Member of the General Assembly, however, the issue presented herein must be viewed not only within the parameters of the Ethics Law, but also within the parameters of the Pennsylvania Constitution. In Corrigan, Opinion No. 87 -001, the Commission reviewed Article III, Section 13 of the Pennsylvania Constitution dealing with a member's vote being denied when a personal interest is involved'. It was determined that the constitutional proscription controlled and the Ethics Law would lack the jurisdiction to address the matter. Corrigan further reviewed Article II, Section 15 dealing with privileges. The Commission stated that the State Constitution provision was similar to the United States Constitution counterpart. Accordingly, Members of the General Assembly could not be questioned regarding any legislative action. Legislative action includes introduction, consideration, debating, voting, enactment, adoption or approval of legislation. Finally, the Commission cautioned that the Ethics Law did apply to non - legislative activities and that all rulings on such issues continued in effect. The Commission has in prior cases, however, ruled on the issue of use of public office in violation of the Ethics taw in relation to non - legislative action and the application of the law in such The Honorable Eugene E. Porterfield June 4, 1993 Page 4 situations applies here. See, e.a. Olasz, Order No. 851 (Use of lease of vehicle for legislative purposes to obtain pecuniary benefit other than compensation provided by law); Friend Order No. 800 (Use of district office for private practice of law); Rieaer Order No. 680 (Use of House stationery, postage, equipment, staff and district office for re- election campaign activities); Fox, Order No. 379 -R (Statements of Financial Interests); Cessar, Opinion No. 82 -002 (Use of district office for campaign purposes); Seltzer Opinion Nos. 80 -044, 80 -057 (One -year representation restrictions); and Geist, Opinion No. 79 -011 (Use of office for private business ventures). The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other law, 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 Senate of Pennsylvania, you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude you from outside employment /business activity subject to the restrictions and qualifications as noted above. While normal circumstances would require you to abstain from participation in matters relating to your outside business and comply with the disclosure requirements of Section 3(j) of the Ethics Law, as a Member of the Senate of Pennsylvania, activities which relate to legislative actions, defined as the introductory consideration, debating, voting, enactment, adoption or approval of legislation are constitutionally controlled. Such legislative actions are exempt from the purview of the State Ethics Law and the State Ethics Commission. However, non - legislative activities are restricted by 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 The Honorable Eugene E. Porterfield June 4, 1993 Page 5 issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advjce pursuant to 51 Pa. Code 513.2(h). cerely, Vincent J. Dopko Chief Counsel