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HomeMy WebLinkAbout87-001 CorriganSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION ,, MAR 11. 193 7 Mark R. Corrigan A C6 4987 87 -001 Secretary of the Senate 462 Main Capitol Harrisburg, PA 17120 Re: Members of the General Assembly, Voting on Measure or Bill, Conflict of Interests Dear Mr. Corrigan: This responds to your letter of February 5, 1987, wherein you requested the Commission's review of Advice No. 86 -549. I. Issue: Whether the State Ethics Act presents any prohibitions upon a member of the General Assembly voting in relation to a measure or bill that is pending before the Pennsylvania State Senate or the Pennsylvania House of Representatives. II. Factual Basis for Determination: On May 6, 1986, Advice of Counsel No. 86 -549 was issued to State Senator Leonard J. Bodack. Senator Bodack had requested the advice of the State Ethics Commission in relation to whether the State Ethics Act presented any prohibition upon his simultaneous employment as a private stockbroker and service as a Pennsylvania State Senator. In response to the question that was posed, Senator Bodack was advised that the State Ethics Act placed no per se prohibition upon such simultaneous service. Senator Bodack was also advised that the State Ethics Act would require his abstention in matters that were presented to the State Senate in which he had a private and /or personal interest. You have now requested that the State Ethics Commission reconsider the issuance of this Advice of Counsel. Specifically, you have indicated that the Advice of Counsel, precludes a member of the General Assembly from voting on measures that come before the Pennsylvania General Assembly. You have indicated that many members of the General Assembly who have outside business interests or who are involved in various types of activities in the Commonwealth of Pennsylvania may, during the course of their service, be called upon to vote on matters that will in some way, affect them or their private interests. You have further indicated that these interests, while not particularly direct or personal, would appear to be included within the purview of the previously issued Advice of Counsel. You have argued that should the previously issued advice be read so as to preclude a member of the General Assembly from participating in a vote, a conflict would be presented Mark R. Corrigan Page 2 between the operating procedures of the Pennsylvania State Senate and the requirements of the State Ethics Act. Specifically, you have indicated that existing General Assembly procedures require that a member of the State Senate must vote on all questions brought before that body unless excused by the president of the Senate. An individual senator who so refuses to obey the order of the presiding officer of the Senate is deemed to be in contempt thereof. Because of the above outlined factors, you have requested Commission review of the previously issued Advice of Counsel. III. Discussion: As noted previously, Advice No. 86 -549 was issued on May 6, 1986, at the request of State Senator Leonard J. Bodack. That advice has not heretofore been appealed. The regulations of the State Ethics Commission provide as follows: §2.12 Appeal from an advice. (a) Any person who requested an opinion or advice who is dissatisfied with an advice given may appeal to the full Commission for review. 51 Pa. Code 2.12(a). (b) Any such appeal shall be made, in writing, to the Commission within 15 days of service of the Advice. 51 Pa. Code. 2.12(b). The instant matter will not be considered as an appeal of the previously issued advice as such has not been timely filed. We will, however, review the question presented as an original request for the opinion of this Commission pursuant to Section 7 (9)(i) of the State Ethics Act. 65 P.S. §407(9)(i). The State Ethics Act was promulgated in 1978 and in part provides as follows: Section 3. 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). Mark R. Corrigan Page 3 This Commission has traditionally interpreted the foregoing provision to prohibit a public official or public employee from participating in any matter in which the official has a personal pecuniary interest. Sowers, 80 -050. At the outset, it should be noted that the State Ethics Commission has consistently and uniformly held that the abstention requirements imposed pursuant to the provisions of the law and pursuant to the issuance of prior Commission opinions relate to matters in which a public official has a direct and personal pecuniary interest. See Blaney, 84 -003; Krier, 84 -002. The Commission, as a result, has determined, on a number of occasions in the past, that a public official is not precluded from participating in a matter if it affects the official as a member of a group or class of individuals that would benefit generally from the specific action in which the official has been involved. The issue presented herein must be viewed within the above provision of the State Ethics Act and within the parameters of certain provisions of the Pennsylvania State Constitution. Generally the Pennsylvania Constitution provides as follows: Privileges of Members The members of the General Assembly shall in all cases, except treason, felony, violation of their oath of office and breach of surety of the peace, be privileged from arrest during their attendance at the sessions of their respective Houses and in going to and returning from the same; and for any speech or debate in either House they shall not be questioned in any other place. Const. Art. 2 §15. While there is a paucity of judicial precedent in the Commonwealth of Pennsylvania in relation to the above provisions of law, the decisions that have been rendered have generally confirmed that the parameters of the above provision of the Constitution are essentially the same as its counterpart in the federal constitution, U.S. Const. Art. 1, §6; Sweeney v. Tucker, 473 Pa. 493, 375 A.2d 698, (1977); Consumer Party of Pennsylvania et al v. Commonwealth of Pennsylvania, 81 Pa. Commw. Ct. 609, A.2d , (1984). A review of the Federal Speech and Debate Clause and the judicial precedent in relation thereto indicates that the members of the General Assembly cannot be questioned regarding any legislative action. In relation to this particular provision, even criminal indictments brought against particular legislative members relating to activities involving their official "legislative functions" were properly dismissed under this theory. U.S. v. Helstoski, 576 F.2d 511, (1978); U.S. v. Meyers, 432 F. Supp. 456, (1977). Federally, it has been determined that, although Congress explicitly Mark R. Corrigan Page 4 authorized the executive and judicial branches to prosecute federal congressmen under the federal conflict of interests statute and the bribery statutes there was no specific expression of intent on part of congress that those prosecutions should be allowed to probe into legislative acts and the motives therefor. See, U.S. v. Dowdy, 479 F.2d 213 (1973). The Speech and Debate Clause was, therefore, read to preclude prosecution under those statutes. In addition to the foregoing, the Pennsylvania Constitution specifically addresses conflicts of interests in relation to "legislative action ". The relative provision provides: Vote Denied Members With Personal Interests A member who has a personal or private interest in any measure or bill proposed or pending before the General Assembly shall disclose the fact to the House of which he is a member, and shall not vote thereon. Const. Art. 3 §13. This specific constitutional proscription appears to be controlling. When read in conjunction with Article 2 §15, we believe that the activities of a member of the General Assembly insofar as such relates to legislative actions are constitutionally controlled. As such, a creature of statute would lack the legal jurisdiction to address such issues. Our research further indicates that legislative action within the above provisions would include the introduction, consideration, debating, voting, enactment, adoption or approval of legislation. At this point it is important to note that our decision in this matter is in no way intended to affect our prior rulings regarding a member of the General Assembly using his or her public office in violation of the Ethics Act in relation to non - legislative action. Our prior rulings relative to such matters and our future application of the law in such situations will be unaffected hereby. See eg., Cessar, 82 -002 (use of district office for campaign purposes); Geist, 79 -011, (use of office for private business ventures); Seltzer, 80 0 4, 80 -057 (one -year representation restrictions); Fox, 379 -R (statements or financial interests); Howard, (contracting procedures). VI. Conclusions: 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. Mark R. Corrigan Page 5 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 of the advice given. This letter is a public record and will be made available as such. Finally, any person may request within 15 days of service of the opinion that the Commission reconsider its opinion. The person requesting reconside- ration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. By the Commission, G. Sieber Pancoast Chairman