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HomeMy WebLinkAbout98-528 FrymanLouis W. Fryman, Esquire Fox, Rothschild, O'Brien & Frankel, LLP 2000 Market St., 10th Floor Philadelphia, PA 19103 -3291 STATE 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, 1998 ARTICLE I OBJECTIVES The Task Force will seek to enhance technological research and economic development as well at to increase cultural awareness in order to 98 -528 Re: Conflict, Public Official, State Ethics Commission, Commissioner, Section 6(d), Agreement of Cooperation, Commonwealth of Pennsylvania, Israel, Task Force, Member, Governor's Staff, Assistance Dear Mr. Fryman: This responds to your letter of March 11, 1998 by which you requested advice from the State Ethics Commission. Issue: Whether the Ethics Law imposes any prohibition or restrictions upon a State Ethics Commission (SEC) Commissioner who is assisting the Governor's staff in implementing an Agreement of Cooperation and who may become a member of the Task Force relative to that Agreement which seeks to promote economic and cultural advances between the Commonwealth of Pennsylvania and Israel. Facts: As a newly appointed SEC Commissioner, a situation has arisen on which you request an advisory. The SEC Chair and Vice Chair have determined that such request will be addressed in this Advice of Counsel. You are currently assisting the Governor's staff in implementing an Agreement of Cooperation between the Commonwealth of Pennsylvania and the State of Israel. You state that you were instrumental in concluding the Agreement, which provides for a task force to enhance trade and cultural exchange. Without any political implications, Governor Ridge is considering your appointment to the Task Force, which will implement the Agreement. You ask whether your appointment to the Task Force would create a conflict with your position as an SEC Commissioner and, if so, whether an exception is allowable for such service. You have enclosed a photocopy of the Agreement of Cooperation which is incorporated herein by reference. The relevant portions of the Agreement for purposes of this advice are as follows: Fryman, 98 -518 March 17, 1998 Page 2 promote a deeper understanding of shared values through the economy, arts, technology and education. The Task Force will have the following objectives: A. to promote cooperation though university, government and industry alliances; B. To identify key technology needs in Pennsylvania and Israel that could be supplemental by mutual cooperation, such as biotechnology, agricultural technology, medical technology, microelectronics, etc.; C. To gain a reciprocal understanding of "emerging technologies" being produced in Israel and in Pennsylvania; D. To increase cultural awareness and understanding of shared values through the arts, humanities, and education by promoting academic and student exchanges and enhancing the quality of life in Pennsylvania through cultural exchanges; E. To promote increased tourism between the peoples of both states in order to deepen an understanding and appreciation of our heritage; F. ] facilitate Binational Research and Development (BIRD), Binational Agricultural Research and Development (BARD) and Binational Science Foundation (BSF) and other arant monies for j4Lnt research and development between Pennsylvania and Israeli companies and academic institutions; G. LQ coordinate with public and private sector economic development organizations providing export counseling and assistance to small and medium size businesses; and H. To identify present and future needs in Israel and Pennsylvania, and ways in which both sides can meet each others' needs. ARTICLE II STRUCTURE 1. The Task Force will be co- chaired by persons from the public and private sector, as appointed by the Governor. These representatives from Pennsylvania will work closely with counterparts in Israel and with Israeli representatives in the United States. 2. The Governor will have the power to appoint the members of the Task Force, which will number 30 individuals, or such number as otherwise agreed upon, by drawing upon state leaders in industry, education, and the arts as well as other prominent citizens. 3. The Task Force will consist of six working committees: Economic Development, Arts and Culture, Education, Agriculture, Tourism, and Health. 4. The Task Force co- chairs may establish sub - committees to assist in the work of the Task Force. The Task Force co- chairs may, as appropriate, invite other government agencies to participate in the committees or in the activities of the Task Force. Fryman, 98 -518 March 17, 1998 Page 3 5. The Task Force will meet twice a year, or as otherwise agreed upon. ARTICLE IV RESPONSIBILITIES The Task Force may, with great regard to the objectives specified in Article 1: A. Make recommendations to promote cooperation in the areas identified in Article 1; B. Make recommendations to promote, as appropriate, the transfer and trade Q goods and services, etc., with the goal at increasing technological and other economic cooperation between Pennsylvania and Israel; C. Make recommendations for the undertaking of private sector studies in Pennsylvania and Israel to promote the objectives listed in Article 1; D. Invite and review reports on high technology cooperation from BIRD, BARD, BSF, the U.S. - Israel Science and Technology Commission, and on other activities of government agencies and departments; E. Make recommendations concerning special preparations to celebrate the 50th anniversary of the State of Israel in 1998. Agreement of Cooperation (Emphasis Added). Discussion: As a Commissioner for the SEC, you are a public official as that term is defined in the Public Official and Employe Ethics Law ( "Ethics Law "), and hence you would be subject to the provisions of that law as well as the Code of Conduct for SEC Commissioners. See, 65 P.S. §401 at seq.; 51 Pa. Code §23.21 at seq. Section 6. State Ethics Commission (d) No individual, while a member or employee of the commission, shall: (1) hold or campaign for any other public office; (2) hold office in any political party or political committee; (3) actively participate in or contribute to any political campaign; (4) directly or indirectly attempt to influence any decision by a governmental body, other than a court of law or as a representative of the commission on a matter within the jurisdiction of the commission; or (5) be employed by the Commonwealth or a political subdivision in any other capacity, whether or not for compensation. Fryman, 98 -518 March 17, 1998 Page 4 65 P.S. §406(d). As to Section 6(d) of the Ethics Law, only subsection (4) has possible application to your situation. The subsection prohibits any direct or indirect attempt to influence any decision of a governmental body, subject to certain exceptions not here applicable. The operative terms in Section 6(d)(4) are "influence," "decision" and "governmental body." The word "influence" is neither defined in the Ethics Law nor Statutory Construction Act. Hence, case law has been reviewed for a judicial definition. Unfortunately, in Pennsylvania, the word "influence" has been defined only as part of the term "undue influence" in the context of decedents estates. See, In Re: Thompson's Estate, 387 Pa. 82, 126 A.2d 740 (1956). In other jurisdictions, the courts have typically used or modified a dictionary definition in ascribing a meaning to the word. "Influence" has been construed to mean the power exerted over others. State v. Community Distributors. Inc., 123 N.J. Super 589, 304 A.2d 213 (1973). The word also has been defined to mean affecting, modifying or acting upon by power in some gradual fashion. State v. Robertson, 241 Oa. 249, 128 So.2d 646 (1961). The most appropo definition is found in State v. Wren, 333 Mo. 575, 62 Sw.2d 853 (1933) where influence was interpreted to mean the process of producing an effect without apparent force or direct authority. The word "decision" is a common word which needs no technical definition. The term "governmental body" is defined under the Ethics Law as follows: "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. 65 P.S. 402. The issue becomes whether you are, or will be, directly or indirectly attempting to influence decisions of governmental bodies, given your current assistance to the Governor's Office and your impending membership on the Task Force. The Ethics Law declares that public office is a public trust and imposes various restrictions and requirements upon public officials. Additional restrictions are imposed upon the members and staff of the SEC. This is consistent with legislative intent (1 Pa. C.S.A. 1921) as reflected in the Preamble of the Ethics Law, 65 P.S. §401(a) as well as the SEC Code of Conduct, 51 Pa. Code §23.21. In applying Sections 6(4)(d), you do, or will have, involvement with the Commonwealth of Pennsylvania, the State of Israel, the Governor's Office and government agencies (referenced in the Agreement), all of which are governmental bodies within the definition of that term in the Ethics Law. Further, your assistance to the Governor's Office as well as your membership on the Task Force are for an effort, in part, which will both indirectly and directly attempt to influence decisions of those, and possibly other, governmental bodies. See the underlined portions of Articles I, II and IV of the Agreement of Cooperation set forth above. The very purpose of the Agreement of Cooperation is to produce certain desired effects (influence) as to these governmental bodies as well as private sector entities and individuals. Therefore you are advised that Section 6(d)(4) of the Ethics Law prohibits such activity both as to the Governor's Office and the Task Force. Given the above conclusion, the next question is whether an exception to the Section 6(d)(4) prohibition is allowable. Fryman, 98 -518 March 17, 1998 Page 5 In Richardson, Opinion 93 -006, state university officials were offered honoraria which are prohibited under the Ethics Law. The university officials asked if they could personally decline and then donate the honoraria to endowment funds or to the state system foundation. The SEC ruled that such donations could not be made and no exception could be allowed: We are mindful of the fact that these public employees are seeking to decline the honoraria so that the payments would be paid to worthy causes consisting of institutional endowment funds or the system -wide foundation. However, the General Assembly enacted the law which we must administer within the statutory limitations. We may not create an exception which does not exist by statute. Id at 5. See also, Ziegler, Opinion 98 -001; Long, Opinion 97 -010. Lastly, 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. Conclusion: As a Commissioner for the State Ethics Commission (SEC), you are a public official subject to the provisions of the Ethics Law and SEC Code of Conduct. As an SEC Commissioner, you may not assist the Governor's Office or obtain membership on a Task Force which will implement an Agreement of Cooperation between the Commonwealth of Pennsylvania and Israel as to economic and cultural activity because you would be directly and indirectly attempting to influence decisions of governmental bodies through such action, contrary to Section 6(d)(4) 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. 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(1,). 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. Si rely, Lvrivir incent J. opk Chief Counsel