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HomeMy WebLinkAbout89-020 GigliottiHonorable Frank J. Gigliotti PA 22nd Legislative District House Post Office Box 137 Main Capitol Building Harrisburg, PA 17120 -0028 Dear Mr. Gigliotti: 1989. I. Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Helena G. Hughes, Chair Robert W. Brown, Vice Chair W. Thomas Andrews G. Sieber Pancoast James M. Howley Michael J. Washo DATE DECIDED: September 27, 1989 DATE MAILED: October 10, 19R9 This Opinion is issued in response to your request of August 18, 89 -020 Re: Conflict, General Assembly, Representative, Constituent Service Brochure, Mailing, Postage, Contribution Whether a member of the General Assembly under the Public Official Employee Ethics Law may distribute a constituent service brochure by either inserting the brochure in a local paper or mailing the brochure paid from money contributed either by a friend or by his or his spouse's personal money. II. Factual Basis for Determination: As the Representative of the 22nd Legislative District you would like to mail a constituent service brochure that has been printed by the House Democratic Print Shop to each household in your district. Because your House postage account is very low, you are unable to handle such a mailing. The pamphlet is designed to serve the needs of your constituents by providing information of a non - political nature. You suggest two alternative methods of accomplishing distribution of Honorable Frank J. Gigliotti Page 2 the brochure: insertion in a local paper at a cost of $29.00 per 1,000 pieces or mailing. Payment for distribution would come from an "in -kind contribution" by a friend or from you and your wife's personal funds. You elicit advice as to which is the best alternative to resolve your mailing problem. Lastly, you reiterate that the brochure does not relate to your 1991 re- election campaign. 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 business with which he or a member of his immediate family is associated. Honorable Frank J. Gigliotti Page 3 "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, Section 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 or no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgment of the public official /employee would be influenced thereby. In reviewing your questions, we must determine whether, in either of the above two situations, there would be a use of the authority of office for a private pecuniary benefit. As to whether the Ethics Law would preclude you or your spouse from paying for the mailing from your own personal funds, such action on your part would not be prohibited because there would be no use of the authority of office or private pecuniary benefit to you. In fact, you would incur a private pecuniary detriment since you would be expending your personal funds to pay for the mailing. Thus, the Ethics Law would not restrict that option. The second alternative, payment for distribution from a friend through an "in -kind contribution ", requires a more detailed consideration. Such a contribution would constitute a gift to you to the extent that it would pay for disseminating the brochure and the Ethics Law does not preclude the receipt of a gift. Section 5(b)(6) requires the reporting of the name and address of the source and the amount and circumstances of the gift, if $200 or more. However, you are not required to list the gift if made by a friend provided the friend is not a registered lobbyist or an employee of a registered lobbyist and is motivated out of a personal relationship. Since Section 3(a) of the Ethics Law would not preclude your receipt of this gift, it is assumed that the contribution will be made to you directly rather than to your legislative account. In the latter situation, a potential problem could exist because your friend would be paying directly for part of your governmental expenditures by depositing the contribution into your legislative account. Therefore, if the gift is made, it should be received directly by you and reported on your Financial Interest Statement, if so required as noted above. Honorable Frank J. Gigliotti Page 4 The above analysis is based upon the premise that your friend has no business or financial dealings with the House of Representatives. Further, if you accept the gift and your friend at some future time seeks to have financial dealings with the House of Representatives, you should seek additional guidance of this Commission. As to your question of which source of payment is the "best choice ", that question cannot be addressed in this opinion because it is beyond the scope of the Ethics Law. 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 been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed in this Opinion is the applicability of the Legislative Code of Ethics, any legislative rule or the election laws. 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 pay for the mailing of a constituent service brochure from your or your spouse's personal funds. You may also pay for dissemination of the brochure by an in -kind contribution from a friend but such payment is a gift which must be reported on your Financial Interest Statement. However, you are not required to list the gift if made by a friend provided the friend is not a registered lobbyist or an employee of a registered lobbyist and is motivated out of a personal relationship. It is assumed your friend has no business of financial dealings with the House of Representatives. 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 Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Honorable Prank J. Gigliotti Page 5 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. B t e Comrniss elena G. Hughes, Chair