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HomeMy WebLinkAbout93-580 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 13, 1993 Section 3(a) of the Ethics Law provides: 93 -580 Re: Conflict; Public Official /Employee; Member of General Assembly; Private Employment or Business; Board of Directors; Private, Not for Profit Corporation. This responds to your letter of July 1, 1993, in which you requested confidential advice from the State Ethics Commission. Issue: Whether a Member of the Pennsylvania General Assembly 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. Facts: You are a Member of the Pennsylvania General Assembly serving the District A. You are being considered for an appointment to the Board of Directors of Corporation B. Corporation B is a private, not for profit corporation which owns and operates several schools for socially and emotionally disturbed children. Corporation B receives payments from school districts and the Commonwealth of Pennsylvania as an approved private school for exceptional children. Currently, litigation is pending between Corporation B and the Commonwealth of Pennsylvania concerning the. interpretation of state regulations on the issue of whether certain costs may be reimbursed by the Commonwealth. Based upon the above, you request an advisory as to whether this situation would present any violations of the Ethics Law. You further request information on any situation whereby this Commission has reviewed the issue of public officials or public employees serving on the governing boards of private, non - profit corporations. Discussion: As a Member of the Pennsylvania General Assembly, 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. Confidential Advice No. 93 -580 July 13, 1993 Page 2 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 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. 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 will be any transgression thereof but merely to provide a complete Confidential Advice No. 93 -580 July 13, 1993 Page 3 response to the question presented. In applying the above provisions . of the Ethics Law to the instant matter, we note that Section 3(a) of the Ethics Law does not prohibit public officials /employees from outside business activities or employment; however, the public official /employee may not use the authority of office for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. A public official /employee must exercise caution so that his private business activities do not conflict with his public duties. Crisci, Opinion 89 -013. Thus, a public official /employee could not perform private business using governmental facilities or personnel. In particular, the governmental telephones, postage, staff, equipment, research materials, personnel or any other property could not be used as a means, in whole or part, to carry out private business activities. In addition, the public official /employee could not during government working hours, solicit or promote such business activity. Pancoe, supra. Similarly, Section 3(a) would expressly prohibit the use of confidential information received by holding public office /employment for such a prohibited private pecuniary benefit. 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. In this case, the outside business with which you would be associated is Corporation B. Under normal circumstances you would not be prohibited from participating in such outside business activities, but whenever a matter comes before you relating to this business, you would be required to abstain pursuant to Section 3 (j)• As a Member of the Pennsylvania 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 Confidential Advice No. 93 -580 July 13, 1993 Page 4 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 Law in relation to non - legislative action and the application of the law in such situations applies here. See, e.g., Olasz, Order No. 851 (Use of lease of vehicle for legislative purposes to obtain pecuniary benefit other than compensation provided bylaw); Friend, Order No. 800 (Use of district office for private practice of law); Rieger, 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). As to your inquiry regarding other situations where the Commission has reviewed the issue of public officials /employees serving on board of non - profit corporations, current budgetary constraints have not permitted the implementation of a comprehensive index or search mechanism for Commission Opinions and Advices. However, two Commission Advices have been located. In Bradley, Advice No. 89 -503, the issue was whether a borough official could serve on a non - profit industrial development corporation. It was held that such service was permitted, however, the voting restrictions of Section 3(j) were applicable in that case. In Marshall, Advice No. 88 -550, it was held that a Deputy Secretary of Welfare was not permitted to serve on the board of a non - profit association which contracts with the Department of Public Welfare. 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 Pennsylvania General Assembly, you Confidential Advice No. 93 -580 July 13, 1993 Page 5 such. 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 to comply with the disclosure requirements of Section 3(j) of the Ethics Law, as a Member of the Pennsylvania General Assembly, 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 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 writincr and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 513.2(h). incerely, `h1 Vincent i. Dopko Chief Counsel