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