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Home My WebLink About82-002 CessarRichard J. Cessar, Member House of Representatives P.O. Box 2 Main. Capital Building Harrisburg, PA 17120 r. y , STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 January 25, 1982 OPINION OF THE COMMISSION 82 -002 RE: Section 1, Section 3(a), Campaigning Dear Representative Cessar: I. Issue: You request advice as to whether it is improper or inadvi- sable for a member of the House of Representatives to conduct some re- election campaigning from his home (district) office. II. Factual Basis for Determination: As you note, 1982 is an election year for members of the House of Representatives in the Commonwealth. You suggest that many incumbent members would find it neither improper nor inadvisable to use and personally pay a portion of the rent and other charges involved in the operation of their home office for campaign purposes. Such a use of an office could, you propose, entail payment of rent, and the installation of a phone just for campaign purposes, in the legislative office, totally paid for by other than public funds. There would be some system of accounting devised to prove that -the payment was made from private funds. You suggest that this proposed limited use of your district office for the purpose of conducting your campaign would have obvious benefits for the citizens of the Common- wealth. This benefit lies in the fact that each candidate - incumbent would be better able to serve his present constituents if he did not have to make trips back and forth to another site to conduct campaign activities. You point out that it has been most difficult to find an appropriate site for a legislative and a campaign office in the same general locale. Richard J. Cessar, Member January 20, 1982 Page 2 III. Applicable Law: The law to be applied to this question is as follows: Section 1 Purpose. The Legislature hereby declares that public office is a public trust and that any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust. In order to strengthen the faith and confidence of the people of the State in their government, the Legislature further declares that the people have a right to be assured that the financial interests of holders of or candidates for public office present neither a conflict nor the appearance of a conflict with the public trust. Because public confidence in government can best be sustained by assuring the people of the impartiality and honesty of public officials, this act shall be liberally construed to promote complete disclosure. 65 P.S. 401. IV. Discussion: Section 3(a) Restricted Activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). As an elected Representative you are a "public official" within the meaning of the Ethics Act. See 65 P.S. 402. As such, your conduct must meet the standards set forth in the Ethics Act. These standards are both specific and general ones. To address and answer your question we must review both the specific requirements enunciated in Section 3(a) of the Ethics Act and the general standards of Section 1 of the Act. We will address the requirements of Section 3(a) first. Richard J. Cessar, Member January 20, 1982 Page 3 Section 3(a) states that "public office" may not be used for personal "financial gain." Thus, the question becomes: Would the proposed use of your office result in your obtaining of funds or capital or the acquisition or increase of resources, advantages or in securing re- election to your office? It appears that the main, if not the only, result of the proposed use of your district office for purposes would be to obtain funds or capital or to otherwise acquire or increase your resources, advantages (over opponents), funds or re- election. As such, it is possible that you could acquire "financial gain" from the proposed use of your office. Next, we must consider the question of the impact of your proposed reimbursement or payment for the use of your district office. Assuming that, as you suggest, an acceptable accounting system can be devised to pay for the proposed use of your office for campaign purposes from other than public funds, we cannot find that the proposed use of your district office for campaign purposes is inherently or per se a violation of Section 3(a) of the Ethics Act. There are, of course, questions as to the validity of any individual accounting system and its verification which certainly could lead to findings that Section 3(a) had been violated. However, as expressed in Section 1 of the Act, we must view this proposed office use in light of the general standards of Section 1 of the Ethics Act. That Section unequivocally states that: "...public office is a public trust and that any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust. In order to strengthen the faith and confidence of the people of the State in their government, the Legislature further declares that the people have a right to be assured that the financial interests of holders of or candidates for public office present neither a conflict nor the appearance of a conflict with the public trust." 65 P.S.401. Richard J. Cessar, Member January 20, 1982 Page 4 This concept is not novel. Indeed, courts have clearly held that: "It is a well and wisely esta- blished principle of public policy in Pennsylvania that a- public official may not use his official power to further his own interests. This principle originated in the common law and has become embodied in the Constitutiod of Pennsylvania and has been declared to be. the policy of this state in many Acts of Assembly. . . The reason for this must be obvious -- a man cannot serve two masters at the same time, and the public interests must not be jeopardized by the acts of a public official who has a direct pecuniary or personal or private interest which is or may be in conflict with the public interest ". Genkinger v. New Castle, 368 Pa. j 547, 551 -2, 84 A.2d 303 (1951). The principle has been consistently upheld and re- affirmed. Even where the public is clearly benefitted by the official's improper actions, the courts have not adopted an acquiescent attitude. Illegality of contracts made in violation of municipal codes prohibiting conflicts of interest, for example, is sustained despite the lack of corrupt or dishonest intent or the fairness of the price charged. Commonwealth v. Miller (No.1), 31 Pa. Superior Ct. 309, 316 (1906); Milford Borough v. Milford Water Co., 124 Pa. 610, 17 A.185 (1889); and Hanover Township School District.Audit, 265 Pa. 157, 163, 108 A.2d 656 (1919). Illegal contracts are not subject to ratification, Milford Borough, supra, and the Courts are not generally concerned with any alleged hardship which may occur if the statutes prohibiting conflicts of interest are enforced. Hanover Township, supra and Waltman v. Albany Township School District, 64 Pa. Superior 458, 469 (1915). We are placed in a similar position in ruling on your proposal to pay for the office space used for campaign purposes with other than public funds. We find that such payment or reimbursement will not dispel the appearance of a conflict of interest in this case. We find neither the proposal for reim- bursement nor the purported benefit to your constitutents sufficient to obviate the fact that at least an appearance of a conflict would remain if your office were used as you suggest. A system of accounting could be prepared, applied and verified to insure proper payment or reimbursement for total dollars Richard J. Cessar, Member January 20, 1982 Page 5 attributable to your use of your office for campaign purposes. Yet this payment would not eliminate the perception of the - public that you were using your public office for the personal purpose of gaining re- election which constitutes a personal gain secured by the use of your public office. The simple fact is that reimbursement for the use of the office is not sufficient to eradicate this public reaction and perception that you would have obtained "financial gain" from theuse of your office or to remove the appearance of having used your public office for your personal (re- election) reasons, in derogation of the public trust. Likewise, the fact that the public may be benefitted by the proposed use of your district office does not remove the appearance of a conflict between your personal interest in re- election and your public responsibilities as a Representative. We have previously held that: "Use of your (a Senator's) district office for personal fund raising creates at least the appearance of a conflict of interest between your personal financial interests and your duties as a State Senator." Street, 80 -005. We must be able, for purposes of interpreting and applying the Ethics Act, to separate your role as incumbent serving your constituents and your role as candidate serving your personal interests in attempting to secure re- election. We have been given the responsibility under Section 1 of the Ethics Act to strive to eradicate instances where the appearance of a conflict with the public trust arises. The circumstances you present would constitute an appearance of a conflict of interest and require us to reach the same conclusion as in Street, supra. V. Conclusion: The use of your district office for the conduct of campaign (re- election) activity, even assuming for the sake of discussion that completely accurate and verifiable payment of actual costs and expenses were made, constitutes an appearance of a conflict with the public trust in that you would appear to be using your public office for your personal gain as a candi- date. We are required to uphold and apply the concepts expressed in Section 1 of the Ethics Act. There, the Legislature declared that the public has a right to expect that public officials will avoid any effort to realize personal financial gain from their public office and that the public has a right to be assured that an office holder or candidate's personal financial interests present neither a conflict nor the appearance of a conflict with the public trust. It would be, therefore, improper to use your district office in the manner Richard J. Cessar, Member January 20, 1982 -Page 6 `suggested, because to do so would create an appearance of a conflict of interest. SSC /rdp Pursuant to- Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commission:, and evidence of good faith conduct in any 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. AUL J: SMITH Chairman