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HomeMy WebLinkAbout93-573 MundyThe Honorable Phyllis Mundy P.O. Box 51 Main Capitol Building Harrisburg, PA 17120 -0028 ', ri r STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. 50X 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 17, 1993 93 -573 Re: Conflict, Public Official /Employee, General Assembly, Representative, Pennsylvania Bar Association, Panel Discussion, Reimbursement of Overnight Lodging. Dear Representative Mundy: This responds to your letter of June 14, 1993, in which you requested 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 General Assembly from receiving reimbursement of overnight lodging expenses while attending a bar association meeting. Facts: You are a Member of the Pennsylvania House of Representatives representing the 120th Legislative District. You have been asked by the Pennsylvania Bar Association to participate in a panel discussion at the Pennsylvania Bar Association Board of Governors' Retreat at the Skytop Lodge on June 24, 1993. The Pennsylvania Bar Association has indicated that it will reimburse you for one night's lodging. You have requested an advisory from the State Ethics Commission as to whether this expense can be paid by the Pennsylvania Bar Association. Discussion: As a 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 The Honorable Phyllis Mundy June 17, 1993 Page 2 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 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. 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 been or will be any transgression thereof but merely to provide a complete response to the question presented. In applying the Ethics Law to this case, Section 3(a) of the Ethics law would not restrict or prohibit you from receiving reimbursement for one night's lodging from the Pennsylvania Bar Association. Such reimbursement would constitute a gift to you to the extent that it pays for lodging. The Ethics Law does not preclude the receipt of a gift. See Giarliotti, Opinion No. 89 -020; Greevv, Advice No. 90 -564. The Honorable Phyllis Mundy June 17, 1993 Page 3 In addition to the above, however, the Ethics Law disclosure requirements regarding gifts and payments for or reimbursement of actual expenses for transportation, lodging and /or hospitality received in connection with public office or employment are applicable. These requirements are set forth at Section 5, which provides in pertinent part: Section 5. Statement of financial (a) The statement of financial interests filed pursuant to this act shall be on a form prescribed by the commission. All information requested on the statement shall be provided to the best of the knowledge, information and belief of the person required to file and shall be signed under oath or equivalent affirmation. (b) The statement shall include the following information for the prior calendar year with regard to the person required to file the statement. (6) The name and address of the source and the amount of any gift or gifts valued in the aggregate of $200 or more and the circumstances of each gift. This'" paragraph shall not apply to a gift or gifts received from a spouse, parent, parent by marriage, sibling, child, grandchild, other family member or friend when the circumstances make it clear that the motivation for the action was a personal or family relationship. However, for the purposes of this subsection, the term "friend" shall not include a registered lobbyist or an employee of a registered lobbyist. This paragraph shall not be applied retroactively. (7)(i) The name and address of the source and the amount of any payment for or reimbursement of actual expenses for transportation and lodging or hospitality received in connection with public office or employment where such actual The Honorable Phyllis Mundy June 17, 1993 Page 4 expenses for transportation, and lodging or hospitality exceed $500 in the course of a single occurrence. This paragraph shall not apply to expenses reimbursed by the governmental body or to expenses reimbursed by an organization or association of public officials or employees of political subdivisions which the public Official or employee serves in an official capacity. 65 P.S. §S405(a), (b). Regardless of whether the contribution will be made to you directly or to your legislative account by the Bar Association depositing the reimbursement into your legislative account, such is a gift under the Ethics Law which should reported on your Statement of Financial Interests, if such exceeds the $200 reporting threshold for gifts. See Nove, Opinion No. 91 -007. Similarly, since such payment is reimbursement for actual expenses for lodging or hospitality received in connection with public office, it also should be reported on your Statement of Financial Interests, if it exceeds the $500 reporting threshold for reimbursements. 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. Under Section 3(a) of the Ethics Law, you may receive reimbursement for lodging from the Pennsylvania Bar Association while attending the Board of Governors' Retreat. Such reimbursement would be considered a gift.. Section 5(b)(6) of the Ethics Law requires you to list the name and address of the source of the gift, the value and the reason for the gift, to the extent it exceeds $200. Section 5(b)(7) of the Ethics Law requires you to list the name and address of the source of the reimbursement and the amount, to the extent it exceeds $500.00 in the course of a single occurrence. 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 The Honorable Phyllis Mundy June 17, 1993 Page 5 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 S13.2(h). Sincerely, 1//co",1 3 t 4 4//ca, Vincent J. Dopko Chief Counsel