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HomeMy WebLinkAbout89-014 CappabiancaHonorable Italo S. Cappabianca State Representative 1216 West 26th Street Erie, PA 16508 Dear Mr. Cappabianca: 1989. I. Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Helena G. Hughes, Chair G. Sieber Pancoast Dennis C. Harrington Michael J. Washo DATE DECIDED: July 28, 1989 DATE MAILED: Ahg)icr 71, 1989 89 -014 Re: Conflict, General Assembly, Representative, Travel Agency, Airline Tickets, Legislative District Office, Rental of Own Building This Opinion is issued in response to your request of June 22, Whether a member of the General Assembly under the Public Official and Employee Ethics Law may purchase his airline tickets for travel to and from Harrisburg from a travel agency of which he is president, thereby generating a 10% commission to his agency and secondly, whether the member of the General Assembly may charge his legislative district account with rent at the local prevailing rate for a district office in a building he owns. II. Factual Basis for Determination: You serve as an elected member of the Pennsylvania House of Representatives. You advised that you frequently travel between Erie and Harrisburg by airline due to the convenience involved. The fare is approximately $230.00 and it is your practice to purchase the airline tickets from the Cappabianca Travel Agency of which you are president so that you can obtain prompt service. Your agency, like all travel agencies, receives approximately a 10% commission from the airline for handling the tickets. Honorable Italo S. Cappabianca Page 2 You are also the owner of a building in Erie which has two separate entrances and utility connections. The building contains separate electrical connections, water heaters, furnaces and air conditioning as well as two apartments. One of the two apartments in the structure is your own personal apartment and the other apartment is your legislative district office. As the owner of the building, you rent one apartment as your legislative district office and charge your legislative district account with rent according to the local prevailing rate in the area. You question whether the newly enacted Ethics Law presents any restrictions upon the above referenced activities. III. Discussion: As an elected member of the Pennsylvania House of Representatives, you are a public official as that term is defined under the Public Official and Employee Ethics Law of June 26, 1989, Act 9 of 1989. Accordingly, you are subject to the provisions of the Ethics Law and the restrictions therein are applicable to you. 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 under the Ethics Law: 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 or his immediate family or a Honorable Italo S. Cappabianca Page 3 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. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. In reviewing your activities, we must determine whether, in either of the above situations, there would be a use of the authority of your office for your private pecuniary benefit. In order to resolve the question, it is necessary to review the compensation to which you, as a member of General Assembly, are entitled. The resolution of this matter must turn upon whether you are using the various funds which are authorized for legislative expenses in a fashion which conforms to the requirements for the utilization of such funds. For purposes of this Opinion, we assume that your travel to and from Harrisburg from your residence and legislative district office in Erie relates to the performance of your legislative duties and responsibilities, and that the travel by airline is within the allowable limits for expenses of that type, as authorized by Resolution of the Rules Committee. Generally, members of the Pennsylvania General Assembly are, by law, entitled a to statutorily fixed compensation. The Public Official Compensation Law, 65 P.S. 5366.1 et. s_ge ,., provides, in part, that such members are to receive $47,000 per annum as a salary as well as mileage to and from their homes at a rate of $.20 per mile, circular for each week a member was in attendance. Additionally, each member may receive an allowance for clerical assistance and other expenses incurred during his term in connection with the duties of his office in the sum of $7,500 annually, as well as $2,500 which is appropriated through the General Appropriations Act of each year. 65 P.S. 5366.4. Members were also allocated an unvouchered expense allowance of $12,000 per annum for the period commencing July 1, 1987 and ending November 30, 1988. 65 P.S. S366.51. We also must take note that in each fiscal year, the General Assembly of Pennsylvania promulgates an annual General Appropriation Act which routinely provides for home office, printing as well as other miscellaneous or contingent expenses, in addition, to Honorable Italo S. Cappabianca Page 4 the aforementioned. These appropriations are allocated to each individual by and within parameters established by the House Rules Committee. In relation to these other authorized expenses to which a member may be entitled, a brief review of the operational aspects of the House of Representatives is necessary as both the House Rules and Bi- Partisan Management Committees have substantial roles in such matters. The House Bi- partisan Management Committee is generally responsible for governing various aspects of the operations of the House of Representatives. Specifically, the Committee is authorized to prepare and adopt rules and regulations: Insuring that proper prior authorization has been obtained for all expenditures and expenses of the House of Representatives including those of its officers, members and employes, that such expenditures are made for purposes prescribed by law or by rule of the House of Representatives and that adequate appropriated funds are available for disbursement. Development of uniform standards, policies and procedures for the acquisition, purchase or leasing of office or storage space for officers, members and employes of the House of Representatives both in the Capitol and throughout the Commonwealth. 46 P.S. §42.121b. (a) (3); (18 ). It is further provided by statute that the regulations promulgated by the Committee shall have the "force and effect" of law. 46 P.S. 542.121 b(b). Additionally, the power of each House of the Legislature determine its rules is constitutionally vested. Const. Art. 2 Rules governing the procedures of the House of Representatives established by the House Rules Committee. This Committee also . authority to determine how miscellaneous or contingent expense will be allocated. The Rules of the House of Representatives which have been promulgated pursuant to the above authority provide, in part, payment of certain other expenses of the members of the House. to 5 11. are has the funds for the The Honorable Italo S. Cappabianca Page 5 authorized expenses for which payment maybe made include but are not limited to: Travel expense on legislative business by common carrier. (Voucher and receipt from Common Carrier necessary). Rent for legislative office space. (Voucher necessary). Payment for such authorized expenses is to be made by the Chief Clerk of the House from appropriation accounts under his "exclusive control and jurisdiction" upon a written request approved by the Speaker of the House or the Majority or Minority Leader of the House. Once again, all expenditure of such expense funds appropriated to the House or to a member shall be subject to the expenditure guidelines established by the Rules Committee. Rule 14; Rules of the House of Representatives, Commonwealth of Pennsylvania. Turning now to the question of the rental of your district office from a building that you own, it is initially noted that payment for such is an authorized expense for an elected representative. The rules and regulations noted above clearly provide that you are entitled to receive such an allowance in aid of your official duties. Payment of such expense is to be made from the accounts under the "exclusive control and jurisdiction" of the Chief Clerk only after it has been appropriately approved. Additionally, it is important to note that prior to receiving such approval, an independent fair market value appraisal must be provided indicating the market rental value of the facility. A member plays no role in determining the rental rate. The Rules Committee of the House sets a cap on the amount that may be paid for such a facility. That limit, which at this time is $450 per month (as set by the Rules Committee) may not be exceeded. Thus, if the rental value of a facility is over that limit, the member may only receive $450 monthly from this account. If the appraised value is less; that amount is received. Clearly pursuant to law, a member of the General Assembly is entitled to receive funds for the reimbursement of expenses in relation to the rental of a district office. The amount fixed for such rental has also been established pursuant to law which amount may not be exceeded. That amount must be the lesser of the fair market appraised rental value or $450 monthly. These funds may only be appropriated after compliance with all of the heretofore outlined requirements of law. In light of the fact that the funds allocated to you for the purpose of your district office rental are specifically authorized by law and subject to stringent guidelines established by the House, Honorable Italo S. Cappabianca Page 6 combined with the fact that there can be no realization of a gain beyond the fair market rental value as established by an independent appraisal, and you can not determine such rate or value, leads to the conclusion that there would be no conflict under the provisions of the public official and employee ethics law in that there is no use of the authority office. In passing we note that this is not a question of first impression and an issue of this nature was raised under the prior Ethics Law, the substantive provisions of which are substantially similar to the current law. In Romanelli, Opinion 79 -006, we decided under Act 170 of 1978, P.L. 373, that a member of the General Assembly could rent, as his legislative office, an office located in a building which was jointly owned by himself and his wife. See also Corman, Opinion 79 -013. The instant determination is consistent with that result. Similarly, a review of the question regarding the use of your travel agency to obtain your airline travel ticket must be based upon the same analysis. This expense is reimbursed to you pursuant to law regardless of how you are transported to Harrisburg. Pursuant to the House "Expense Account Guidelines" as established and amended April 11, 1989, members are permitted to elect to receive actual expenses for travel by fixed route common carrier for attendance at each regular, special or extraordinary session of the legislature. Such reimbursement is limited to one trip for each week of a legislative session and must be reduced by the amount equal to session mileage entitlement. Specifically, you are allotted $.20 per mile, circular pursuant to 65 P.S. 5366.4, with any excess expense reimbursed from the General Appropriation Act funds allocated for contingent expenses to the accounts under the control of the Chief Clerk. A review of the above clearly indicates that you are, by law, entitled to the actual air fare for your transportation to and from Harrisburg. The actual cost to the House for your ticket is exactly the same whether it is obtained through your agency or directly from the common carrier. The fees paid to the travel agency are generated, not by the House but from the funds paid to the airline. As such, we once again believe that there is no conflict as the funds involved are allocated for your individual expenses in accordance with law. It is important to herein note, that our decision in both matters is based upon the fact that neither you nor your business has or will be entering into any transactions with the House of Representatives or any members, officers, or employees thereof. The only matters addressed by the instant opinion is whether your contemplated use of Honorable Italo S. Cappabianca Page 7 the expense funds to which you are lawfully entitled is in accord with the provisions of the Ethics Law. Once again, we have assumed for the purpose of issuing this opinion that your use of these funds relates solely to legislative purposes. In reaching the above, we are mindful of Section 1(b) of the Preamble of the Ethics Law which provides: Section 1. Purpose. (b) It is recognized that many public officials, including most local officials and members of the General Assembly, are citizen - officials who bring to their public office the knowledge and concerns of ordinary citizens and taxpayers. They should not be discouraged from maintaining their contacts with their community through their occupations and professions. Thus, in order to foster maximum compliance with its terms, this act shall be administered in a manner that emphasizes guidance to public officials and public employees regarding the ethical standards established by this act. 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 Act has not been considered in that they do not involve an interpretation of the Ethics Act. IV. Conclusion: As a member of the General Assembly, you are a public official subject to the provisions of the Ethics Law. Under 3(a) of the Ethics Law, you may purchase airline tickets from a travel agency of which you are president, to travel to and from Harrisburg and, you may charge your legislative district account with rent at the local prevailing rate for a district office in a building you own. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. 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 evidence of the advice given. such. This letter is a public record and will be made available as Honorable Italo S. Cappabianca Page 8 Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. Chair Helena G. Hughes dissents. By the Commission, G. Sieber Pancoast Commissioner