Loading...
HomeMy WebLinkAbout94-530 LehSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783.1610 ADVICE OF COUNSEL March 17, 1994 The Honorable Dennis E. Leh_ House Post Office Box 1221 Main Capitol Building 94-530 Harrisburg, PA 17120 -0028 Re: Conflict, Public Official /Employee, Conflict, Public Official, Member of House of Representatives, Use of Authority of Office or Confidential Information, Immediate Family, Spouse, Voting Machine Inspector. Dear Representative Leh: This responds to your letter of February 16, 1994 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 whose spouse is a voting machine inspector in that Member's district. Facts: You are a Member of the House of Representatives representing the 130th District. Your wife was appointed to be a voting machine inspector in a local precinct in your district. Accordingly, you request - an advisory from the State Ethics Commission as to whether, under the Ethics Law, her service as an inspector would be considered a conflict of interest with your candidacy for the General Assembly. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. S5407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 P.S. SS407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. Leh, The Honorable Dennis E., 94 -530 March 17, 1994 Page 2 As a Member of the 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 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. "Immediate Family." A parent, spouse, child, brother or sister. "Candidate." Any nomination or election vote of the electorate, elections, inspector of of a political party, individual who seeks to public office by other than a judge of elections or official whether or not such Leh, The Honorable Dennis E., 94 -530 March 17, 1994 Page 3 individual is nominated or elected.... 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. Based upon the above definitions, it is clear that your wife, as voting machine inspector, is not a public official or public employee and therefore is not subject to the provisions of the Ethics Act, except for Sections 3(b) and 3(c). Section 3(a), prohibits a public official from using the authority of public office or confidential information received by holding a public office for the private pecuniary benefit of the public official, any member of his immediate family, or any business with which the public official or a member of his immediate family, or any business with which the public official or a member of his immediate family is associated. Here, there does not appear to be any real possibility of an inherent conflict or a private pecuniary benefit inuring to you, a member of your immediate family or a business with which you or a member of your immediate family is associated merely because of your wife is a voting machine inspector in a local precinct within your district. Thus, you would not have a conflict of interest in connection with your candidacy for the General Assembly. 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 Member of the House of Representatives, you are a public official subject to the provisions of the Ethics Law. Pursuant to the Ethics Law, your wife, as a voting machine inspector, is not a public official or public employee. Subject to the qualifications above, you would not have a conflict of interest with your candidacy for the General Assembly. 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 Leh, The Honorable Dennis E., 94-530 March 17, 1994 Page 4 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually d eceived at the Commission within fifteen (15) days of the date of this Advice pursuant to 51 Pa.Code §13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717 -787- 0806). cerely, Vincent . Chief Counsel 4 Do