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HomeMy WebLinkAbout94-591 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 - 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 16, 1994 94 -591 Re: Conflict, Public Official /Employee, Retirement, Testimonial Dinner, Gift. This responds to your letter of July 18, 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 A from receiving a retirement or testimonial dinner by former constituents and friends. Facts: A member of A who is not seeking re- election is being given a retirement /testimonial dinner by former constituents and friends, all of whom are private citizens residing in Pennsylvania. To the best of your client's knowledge, information and belief, none are lobbyists as defined in the Lobbying Registration and Regulation Act, 46 P.S. 5148.2. Dinner may include a ceremony at which retirement gifts or tokens or mementos from decades of public service may be presented to the retiring official; however, to the best of your client's knowledge, information and belief, no lobbyist is sponsoring the dinner or the gifts. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. 55407 (10) m (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. 55407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. Additionally, since your request is generalized in scope, this is to advise that Confidential Advice, 94 -591 August 16, 1994 Page 2 the instant response must be generalized in terms of its application. As member of A, the individual is a public official as that term is defined under the Ethics Law, and hence he is 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 impactor 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 Confidential Advice, 94 -591 August 16, 1994 Page 3 public official /employee would be influenced thereby. In applying Section 3(a) of the Ethics Law to the instant matter, it is initially assumed that the member of A is not receiving any honoraria which is prohibited by the Ethics Law. See Baker, Opinion 91 -004. If the member of A is receiving a retirement /testimonial dinner, tokens or mementos which are classified as gifts, such gifts are not prohibited by the Ethics Law. See Gialiotti, Opinion 89 -020. As to such gifts, it is assumed that there are no improper understandings present which are prohibited by Sections 3(b) and 3(c) of the Ethics Law noted above. In addition, to the extent that the gift or gifts are valued in the aggregate of $200.00 or more, the member of A must comply with Section 5(6) regarding the disclosure requirements of such gifts on the Financial Interest Statements. Subject to the limitations and qualifications noted above, Section 3(a) of the Ethics Law would not prohibit the receipt of such gifts by the member of A. Lastly, this advice is expressly limited in scope to the question asked. Thus, since you have not made inquiry as to the restrictions or prohibition of Section 3(g) upon a former public official, such issues will not be addressed in this advice. 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 B. Conclusion: As a member for A, the individual is a public official subject to the provisions of the Ethics Law. Subject to the limitations and qualifications noted above, Section 3(a) of the Ethics Law would not prohibit the receipt of gifts by a member of A. As to such gifts, the disclosure requirements of the Ethics Law must be satisfied regarding the filing of the Financial Interests Statement. 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. such. This letter is a public record and will be made available as Confidential Advice, 94 -591 August 16, 1994 Page 4 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 received at the Commission within fifteen (15) days of the date of this Advice pursuant to 51 Pa. Code 513.2(k) . The appeal may be received at the Commission by hand delivery, United States mail, dalivesy service, or by FAX transmission (717 -787 -0806) . Failure to file such an appeal at the Commission within fifteen (15) days may result in the dismissal off the appeal. Sincerely, Vincent J. V7opk Chief Counsel