HomeMy WebLinkAbout96-533 ConfidentialSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
April 1, 1996
Re: Conflict, Public Official /Employee, A, European Conference.
96 -533
This responds to your letter of February 29, 1996 in which you requested
confidential advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Law presents any
prohibitions or restrictions upon the A with regard to attending a European conference
on the B.
Facts: In your capacity as the A, you have been invited to attend a conference
on the B to be held in Europe. The conference is being co- sponsored by the C and the
D. The C is a registered charity in E which receives funding from the F and which
promotes British culture abroad. The D is a civil service training college based in G
which receives funding from the H. To your knowledge, neither of these sponsoring
organizations has any expectation of doing business in Pennsylvania. The C and the
D will arrange and pay for the cost of air transportation, lodging, and meals associated
with the conference. None of the expenses will be paid by the Commonwealth.
You state in your letter that there is a "small" amount of corporate funding
involved. Newspaper I is a London -based newspaper which is also contributing to the
conference. Newspaper I is sold in the United States, and J is a subscriber.
You have submitted a copy of your invitation to the conference, together with
substantive information as to the conference, which documents are incorporated herein
by reference. It is noted that your invitation states, ". . . if you can accept this
invitation, all of your travel expenses to and from Europe and all of your conference
costs will be met by the [C] and the [D]. Thus, no cost whatsoever should fall on the
State taxpayer."
Discussion: It is initially noted that pursuant to Sections 7(10) and 7(1 1) of the
Ethics Law, 65 P.S. §§407(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. §5407(10), (11). An advisory only
Confidential Advice of Counsel, 96 -533
March 29, 1996
Page 2
affords a defense to the extent the requestor has truthfully disclosed all of the material
facts.
As the A, you are a public employee and an executive -level state employee as
those terms are defined in 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 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 this case, it is factually assumed that you would be attending the said
conference in Europe as part of your official duties in your capacity as the A. The
Ethics Law would not preclude your attendance at the above conference on the B, to
be held in Europe, although you would be required to observe the disclosure
requirements of the Ethics Law which pertain to the filing of Statements of Financial
Interests. The Ethics Law's disclosure requirements have been previously considered
Confidential Advice of Counsel, 96 -533
March 29, 1996
Page 3
in the context of similar trips. See, Noye, Opinion 91 -007. See also, Anderson,
Advice of Counsel No. 91 -600; Confidential Advice, No. 91 -597.
The Ethics Law's disclosure requirements regarding any payment for or
reimbursement of actual expenses for transportation, lodging and /or hospitality
received in connection with public office or employment are set forth at Section 5,
which provides in pertinent part:
Section 5. Statement of financial interests
(a) The statement of financial interests filed pursuant to the 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.
(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 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 a 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.
(ii) This paragraph shall not be applied
retroactively.
65 P.S. §405 (a), (b)(7).
Section 5(b)(7) excludes from the disclosure requirements expenses reimbursed
by a governmental body and expenses reimbursed by organizations /associations of
public officials /public employees of political subdivisions wherein the public
official /public employee serves in an official capacity.
The term "governmental body" is defined in the Ethics Law as follows:
Section 2. Definitions
"Governmental body." Any department, authority, commission,
committee, council, board, bureau, division, service, office, officer,
administration, legislative body, or other establishment in the Executive,
Legislative or Judicial Branch of a state, a nation or a political subdivision
thereof or any agency performing a governmental function.
Confidential Advice of Counsel, 96 -533
March 29, 1996
Page 4
65 P.S. §402.
In this case, there appears to be some confusion as to exactly who or what will
be paying your expenses. The submitted invitation states that all of your travel
expenses and all of your conference costs will be met by the C and the D. Your letter
states that there is a "small" amount of corporate funding involved for this conference,
and specifically a contribution by Newspaper I, to which your office subscribes.
In any event, based upon the facts which you have submitted, you are advised
that for purposes of the Ethics Law, none of the sources paying your expenses would
fit within the exclusion in Section 5(b)(7). The exclusion would not apply. Therefore,
you would be required to observe the disclosure requirements of the Ethics Law as to
each source.
Turning now to the question of exactly what must be reported, Section 5(b)(7)
of the Ethics Law provides that the name and address of the source as well as the
amount of any payment or reimbursement of actual expenses for transportation,
lodging, or hospitality received in connection with public office must be reported where
the actual expenses exceed $500 for the single occurrence. Thus, if the
transportation, lodging or hospitality expenses together exceed $500 for this
conference, which they surely will, you must report them on your annual Statement
of Financial Interests. The specific reporting will require the name and address of each
source which provides the travel expenses or reimbursement as well as the amount of
such expenses.
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 Governor's Code of Conduct.
Conclusion: As the A, you are a public employee and an executive -level state
employee subject to the provisions of the Ethics Law. Subject to the qualifications and
restrictions noted above, the Ethics Law would not preclude your attendance at the
upcoming conference on the B, to be held in Europe, at the expense of the C, the D,
and possibly to a small extent by various corporate contributors including a newspaper
to which your office subscribes. Section 5(b)(7) of the Ethics Law would require that
you list the name and address of each source, and the amount of payments or
reimbursements for expenses as to transportation, lodging and hospitality for the
conference. Disclosure must be made as to each source of payment /reimbursement
since none of the sources paying your expenses qualify within the exclusion of Section
5(b)(7) of 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 such.
Confidential Advice of Counsel, 96 -533
March 29, 1996
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 thirty (30) 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 thirty (30) days may result in the dismissal of
the appeal.
i cerely,
Vincent J. opko
Chief Counsel