HomeMy WebLinkAbout97-622 ConfidentialSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
October 23, 1997
97 -622
Re: Conflict, Public Official /Employee, Member, General Assembly, House of
Representatives, Contract, College, Appropriation, Funding, Grant.
This responds to your letters of October 10 and October 16, 1997 by which you
requested confidential advice from the State Ethics Commission.
Issue: Whether the Public Official and Employe Ethics Law presents any
prohibition or restrictions upon a Member of the Pennsylvania General Assembly in
contracting to provide services of obtaining funding for a College from the United
States government or states other than Pennsylvania.
Facts: You have been authorized by Mr. A to request a confidential advisory on
his behalf. Mr. A is a Member of the Pennsylvania House of Representatives.
Mr. A is considering entering into a two -year contract to provide services as an
independent contractor to College B. A draft copy of that contract has been submitted
and is incorporated herein by reference. It is contemplated that Mr. A will assist
College B in obtaining appropriations, grants, and /or other funding from the United
States government and states other than Pennsylvania. You state that College B
receives an appropriation from the Commonwealth of Pennsylvania. Under the terms
of the proposed Agreement, Mr. A would not have any role or involvement with any
activity of College B that relates to the Commonwealth of Pennsylvania.
The proposed Agreement between College B and Mr. A characterizes him as an
independent contractor who will act as a Special Advisor to the President of College
B with his designated function of maintaining and increasing funding as a very high
priority. The terms and conditions of the Agreement are delineated but the fees are
not specified at this time. The Agreement notes that Mr. A will have no role or
involvement with any activity of College B that relates to the Commonwealth of
Pennsylvania.
Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) 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
Confidential Advice of Counsel, 97 -622
October 23, 1997
Page 2
been submitted. It is the burden of the requestor to truthfully disclose all of the
material facts relevant to the inquiry. 65 P.S. § §407(10), (11). An advisory only
affords a defense to the extent the requestor has truthfully disclosed all of the material
facts.
As a Member of the Pennsylvania House of Representatives, Mr. A is a public
official as that term is defined in the Public Official and Employe Ethics Law ( "Ethics
Law "), and hence he is subject to the provisions of that law. Saurman, Opinion No.
94 -004.
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.
Section 3(j) of the Ethics Law provides as follows:
Section 3. Restricted activities
Confidential Advice of Counsel, 97 -622
October 23, 1997
Page 3
(j) Where voting conflicts are not otherwise
addressed by the Constitution of Pennsylvania or by any
law, rule, regulation, order or ordinance, the following
procedure shall be employed. Any public official or public
employee who in the discharge of his official duties would
be required to vote on a matter that would result in a
conflict of interest shall abstain from voting and, prior to the
vote being taken, publicly announce and disclose the nature
of his interest, as a public record in a written memorandum
filed with the person responsible for recording the minutes
of the meeting at which the vote is taken, provided that
whenever a governing body would be unable to take any
action on a matter before it because the number of
members of the body required to abstain from voting under
the provisions of this section makes the majority or other
legally required vote of approval unattainable, then such
members shall be permitted to vote if disclosures are made
as otherwise provided herein. In the case of a three -
member governing body of a political subdivision, where
one member has abstained from voting as a result of a
conflict of interest, and the remaining two members of the
governing body have cast opposing votes, the member who
has abstained shall be permitted to vote to break the tie
vote if disclosure is made as otherwise provided herein.
In each instance of a conflict, Section 3(j) requires the public official /employee
to abstain and to publicly disclose the abstention and reasons for same, both orally and
by filing a written memorandum to that effect with the person recording the minutes
or supervisor.
In applying the above provisions of the Ethics Law to your inquiry, you are
advised that Section 3(a) of the Ethics Law does not prohibit public officials /public
employees from having outside business activities or employment; however, the public
official /public employee may not use the authority of his public position — or
confidential information obtained by being in that position — for the advancement of
his own private pecuniary benefit or that of a business with which he is associated.
Pancoe, Opinion 89 -011. Examples of conduct that would be prohibited under Section
3(a) would include: (1) the pursuit of a private business opportunity while acting in a
public capacity, Metrick, Order No. 1037; (2) the use of governmental facilities, such
as governmental telephones, postage, staff, equipment, research materials, or other
property, or the use of governmental personnel, to conduct private business activities,
Freind, Order No. 800; Pancoe, supra; and (3) the participation in an official capacity
as to matters involving the business with which the public official /public employee is
associated in his private capacity, such as the review /selection of its bids or proposals,
Gorman, Order No. 1041. Mr. A would not be prohibited from engaging in the
proposed business activity subject to the qualifications noted above.
As to Mr. A voting or participating as a Member of the Pennsylvania General
Assembly on matters involving College B, the Commission decision in Corrigan,
Opinion No. 87 -001 is instructive:
Confidential Advice of Counsel, 97 -622
October 23, 1997
Page 4
The activities of a member of the General Assembly insofar as
such relate to legislative actions, defined as the introduction,
consideration, debating, voting, enactment, adoption or approval of
legislation, are constitutionally controlled. Such legislative actions are
therefore exempt from the purview of the State Ethics Act and the State
Ethics Commission. Prior rulings of this Commission and the application
of the State Ethics Act to non - legislative activities are in no way affected
by this opinion.
Corrigan, at 4. Therefore, to the extent that the activities of Mr. A would constitute
"legislative actions," the Ethics Law would not apply to such conduct.
To summarize the above, the Ethics Law would not prohibit Mr. A from
engaging in the private business interests of acting as an independent contractor to
obtain funding from the United States government and other states for College B. As
a public official, Mr. A could not use governmental facilities, equipment, or personnel
for such private business activity. Mr. A's activities as a Member of the General
Assembly to the extent that such conduct constitutes legislative action would not be
subject to the Ethics Law.
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 Member of the Pennsylvania House of Representatives, Mr.
A is a public official subject to the provisions of the Ethics Law. Subject to the
qualifications noted above, a Member of the Pennsylvania General Assembly is not
prohibited by the Ethics Law from entering into a contract with a college to provide
services as an independent contractor to obtain funding for the college from the United
States government and states other than the Commonwealth of Pennsylvania. 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.
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 1. The appeal may be received at the Commission by hand
delivery, United States mail, delivery service, or by FAX transmission (717 -787-
Confidential Advice of Counsel, 97 -622
October 23, 1997
Page 5
0806). Failure to file such an appeal at the Commission within thirty (30) days
may result in the dismissal of the appeal.
i cereiy,
Vincen Do • ko
Chief Counsel