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Home My WebLink About95-622 SturlaSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 30, 1995 The Honorable P. Michael Sturla No. 95 -622 House of Representatives 105 East Wing Main Capitol Building House Box 202020 Harrisburg, PA 17120 -2020 Re: Conflict, Public Official /Employee, Representative, General Assembly, Lease, Automobile, Purchase at Expiration of Lease. Dear Representative Sturla: This responds to your letters of November 1, 1995 and November 22, 1995 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 purchasing the vehicle which he leased for legislative business and for which he received Commonwealth reimbursement. Facts: You lease a 1991 Plymouth Acclaim which lease term will expire on November 30, 1996. The original lease with Chrysler Credit was paid entirely by the Commonwealth for a total of $9,015.47. Fulton Bank Leasing purchased the vehicle at the end of the original lease for $7,165 and resumed leasing it to you. The Commonwealth made the first four payments of the Fulton Bank lease, totalling $964.72. You have made all subsequent payments which will total $7,915.35 by the end of the lease term. The buyout on the car will be $250 and you have paid a $250 security deposit. The estimated book value will be $4,175 and the car will have approximately 100,000 miles at buyout time. The Honorable P. Michael Sturla, 95 -622 November 30, 1995 Page 2 After referencing Saurman, Opinion 94 -004, you state that you will seek re- election, unlike Representative Saurman, and inquire whether that would make any difference under the Ethics Law. Discussion: As a Representative in the General Assembly of the Commonwealth 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: 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 The Honorable P. Michael 3turla,'95 -622 November 30, 1995 Page 3 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. The issue that you raised has been addressed by the Commission in Saurman, Opinion 94 -004. The Commission ruled in the cited Opinion that the Representative was not prohibited under Section 3(a) of the Ethics Law from purchasing or re- leasing a vehicle that was leased for legislative business, with Commonwealth reimbursement, provided the purchase or re -lease was at arms length based upon the fair market value of the vehicle. In addition, the Commission noted its concern that Representative Saurman executed and filed a statement with the House that he would not purchase the vehicle; in that regard the Commission opined that that particular issue was not before the Commission but the issue may be for the House of Representatives. The Commission made the following analysis in the Saurman Opinion: In the specific facts of this case, we conclude that the purchase of this vehicle at the expiration of your term in office would not be prohibited by the Ethics Law provided that the purchase of the vehicle would be at "arms length" based upon the fair market value of the vehicle at the time of purchase. Turning to the issue of whether you may alternatively enter into another lease of the vehicle after the expiration of the current lease, we find that such a lease would not be prohibited by the Ethics Law provided, once again, that it would be at "arms length" based upon the fair market value of the vehicle at the time of the subsequent lease. See Olasz, Order 851. Our rationale focused upon the requirement in the Ethics Law that there may not be a use of the authority of office to obtain a private pecuniary benefit; if the purchase price or subsequent lease is at arms length and based upon fair market value of the vehicle, as we factually assume, there could be no private pecuniary benefit and hence no conflict under the Ethics Law. Lastly, we must note that you have agreed in your February 14, 1991 memo to the Comptroller of the House that you would not purchase this vehicle. Although that issue is not before us in making our determination under the Ethics Law, we do reference the matter since it may be an issue for the House of Representatives. 5aurman, Opinion 94 - 004 at page 6. The Honorable P. Michael Sturia, 95 -622 November 30, 1995 Page 4 Based upon the prior Commission precedent in Saurman, supra, you are advised that Section 3(a) of the Ethics Law would not prohibit your purchase of the vehicle at the expiration of lease that you used for legislative business with Commonwealth reimbursement, subject to the following qualifications. First, it is assumed that the purchase of the vehicle would be at arms length based upon the fair market value of the vehicle at the time of purchase. Saurman, supra. Second, within the format of this advisory opinion, it can only be factually assumed that the purchase is at arms length based upon fair market value. Conditioned upon the foregoing factual assumption, the purchase of the vehicle would not be prohibited by Section 3 of the Ethics Law. Third, the concern raised by the Commission in Saurman, supra, regarding any restriction or prohibition under House operating rules as to the purchase of a leased vehicle for legislative use with Commonwealth reimbursement, while an issue, is not addressed for the reason noted by the full Commission in Saurman, supra. Lastly, the fact that you plan to seek re- election does not impact upon the above analysis and hence would not make any difference under the Ethics Law. Wright, Advice 94 -648. 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 Representative in the House of Representatives, General Assembly, you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not restrict a Representative from purchasing a vehicle leased and used for legislative purposes, with Commonwealth reimbursement, which is purchased at arms length and based upon fair market value subject to the restrictions noted above. 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. The Honorable P. Michael Sturla, 95 -622 November 30, 1995 Page 5 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 §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). Failure to file such an appeal at the Commission within fifteen (15) days may result in the dismissal of the appeal. Vincent . Dopko Chief Counsel