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HomeMy WebLinkAbout90-013 HaferDear Ms. Hafer: 1990. I. Issue: STATE ETHICS COMMISSION 306 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Helena G. Hughes, Chair Robert W. Brown, Vice Chair Dennis C. Harrington James M. Howley Daneen E. Reese DATE DECIDED: May 18, 1990 DATE MAILED: Mav 29, 1990 Honorable Barbara Hafer 90 Auditor General Commonwealth of Pennsylvania Harrisburg, PA 17120 -0018 Re: Conflict, Public Official, Auditor General, Telephone, State Office Building, Campaign, Telephone Located in State Office Building Paid for from Private .Funds. This Opinion is issued in response to your request of April 13, Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon the Auditor General from installing a telephone in her offices at the State Office Building which would be used for telephonic communications of a political or personal nature and which would be paid for from either her campaign or private account. II. Factual Basis for Determination: As incumbent Auditor General with your headquarters located in the Finance Building in Harrisburg and as a candidate for the office of Governor with your campaign headquarters located in Philadelphia, you note that some telephone calls of either a political or personnel nature are directed to your office as Auditor General in the Finance Building. You are considering installing telephones in your office in the Finance Building which would be used for matters of a political or personnel nature. The telephones would be installed and maintained at no cost to the Commonwealth because all expenses relating to them Ms. Barbara Hafer Page 2 would be borne either by the campaign or you individually. It is anticipated that there would be separate line(s) with separate billing and no state employees on state time would be involved with the telephone(s). After referencing the recent amendments to the Public Official and Employee Ethics Law, you request an opinion on the propriety of installing these telephone services in the Auditor General's Office. You cite Cessar, Opinion 82 -002, and interpret that Opinion as relying heavily upon the language in the Preamble of Act 170 of 1978 which was deleted by the 1989 amendments. You argue that Act 9 effectively overruled the Commission's former position so that the current test is whether the financial interests of holders or candidates of public office conflict with the public trust. You conclude by seeking clarification on the above issue in light of the amendments in Act 9 of 1989. III. Discussion: As the elected Auditor General of the Commonwealth of Pennsylvania, you are a "public official" as that term is defined under the Public Official and Employee Ethics Law and as such you are subject to the provisions that law. 65 P.S. 402; 51 Pa. Code Section 1.1. 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: "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 Ms. Barbara Hafer Page 3 family or a 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. Under the Ethics Law, we must observe the stated purpose of that law which is to strengthen the faith and confidence of people in their government by assuring the public that the financial interests of the holders of or candidates for public office do not present a conflict with the public trust. 65 P.S. 401(a). Under Section 3(a) of the Ethics Law quoted above, this provision of law provides that a public official /employee may not use confidential information or the authority of office to obtain a private pecuniary benefit for himself, a member of immediate family or a business with which he or a member of his immediate family is associated. Initially, we will review our prior precedent on the general issue of use of office for campaign, business or personnel matters. Although we note that our prior precedent has been decided under Act 170 of 1978 which has been amended by Act 9 of 1989, a review is warranted as it relates to the underlying analysis of this issue. We will first review all Orders that have been issued on this subject followed by an analysis of our Opinions. In Williams, Order 76, the allegation related to the use of office by a Representative regarding stationary bearing the seal of the Commonwealth and the House of Representatives letterhead. Since the Representative paid for the printing and distribution of the letterhead from personal funds, we found no violation of Act 170 based upon insufficient evidence as to any personal /financial gain. In Rappaport, Order 126, we considered the allegation regarding a use of office by a Representative concerning mailing campaign material paid by public funds. The mailing concerned subjects involving the budget, schools, no fault insurance and state wide banking as well as information on redistricting and the possibility of the Representative being the only incumbent running in the new district. In the cited case, we analyzed the demarcation between actions which were "official business" as opposed to other actions which would be inappropriate. In that case we found that the mailing was primarily for a purpose of informing and advising current and potential constituents, but not for the prime purpose of soliciting votes, and as such we found no violation of Section 3(a) of the Ethics Act in that instance. Ms. Barbara Hafer Page 4 In Mcglatchv, Order 130, the allegation concerned whether a Representative used the House of Representatives postage meter and stationary for personal or political purposes regarding mailing letters to non - constituents for the purpose of soliciting support for the candidacy of another individual seeking public office. We found a violation of Section 3(a) of the. Ethics Act because the mailing was designed to solicit political support for colleague's re- election and as such could not be considered within the ambit of "official business ". We specifically found in that case that the mailing 4as personal in nature rather than legitimate legislative business and directed that the activity should not reoccur. Thereafter, in Thornburci, Order 323, we considered the allegation regarding the use of the Governor's home for fund raising in conjunction with inaugural activities. After finding that the expenses relating to those activities were billed and paid for by the inaugural committee, we found that there was no violation of Section 3(a) of the Ethics Act because even though the reception generated funds, the funds were not paid to the Governor, his immediate family or business with which he was associated. We distinguished Cessar, infra, on the following basis: "This case does not present the use of an office, as in Cessar, but of a home, that the public has specifically provided to its successive occupants for use as their residence. As noted above, the public has long been aware that executive mansions are used for a variety of functions, some governmental and some private. The possibility of public misperceptions from its use as your family's home and residence is i substantially different from their reaction to an incumbent's office space being used as the nerve center of a re- election campaign. Additionally, because of the supervision and control exercised by the Department of General Services, the public can be assured that none of the expenses which result from a private use of the Governor's Home will be paid by the public - a policy strictly followed in this case. We therefore have concluded that the facts and circumstances of this case did not give rise to an appearance of a conflict with your public trust." Id. at 10. Finally, in Rieger Order 680, we considered the allegation as to a Representative who used Commonwealth stationary, mailing systems and postage to send letters to an executive committee in his district encouraging them to support his re-election. Based upon findings of a use of Commonwealth House of Representatives letterhead, stationary, J Ms. Barbara Hafer Page 5 meter postage, equipment and staff to send out re- election materials, we found a violation of Section 3(a) of the Ethics Act as to such activities as well as a violation of Section 3(a) of the Ethics Act regarding the use of his district office for re- election campaign purposes. Turning to our prior Opinions in this area, we held in Golden, Opinion 80 -051 that a Deputy Attorney General in the Department of Justice was not precluded from using his name or title in personal activities designed to raise funds for non - profit educational / corporation because such activity would not result in a personal gain to the individual. However, in Street, Opinion 81 -005, we found that the legislative district office of a state Senator could not be used as a contact point by an independent group seeking to raise funds for his personal use because such would be compensation other than provided by law and contrary to Section 3(a) of the Ethics Act. Since the activities in the case were undertaken by an independent group without the authorization of the state Senator, no further action was taken provided such activity terminated and did not reoccur. Finally, in Cessar, Opinion 82 -002, we considered the propriety of a Representative conducting re- election campaign activities but of his own district office. We analyzed the issue both under Section 3(a) of the Ethics and under the Preamble in Section 1. Under Section 3(a) we found that the use of the district office for campaign purposes to obtain funds or capital or otherwise increase resources could be considered a financial gain through use of office contrary to Section 3(a) of the Ethics Act: "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 campaign purposes would be to obtain funds or capital or to otherwise acquire or increase your resources, advantage (over opponents), funds or re- election." As such, it is possible that you could acquire "financial gain" from the proposed use of office." Id. at 3. Thereafter, we considered the question of whether the creation of an accounting system which would pay for the proposed use of•the office for campaign purposes would be permissible under the Ethics Act. We found that such a payment would not dispel an appearance of Hs. Barbara Hafer Page 6 conflict under the Act. We concluded by noting that the Representative was required to separate his role as an incumbent serving his constituents and his role as a candidate serving his personal interests in campaigning for re- election. As to the above adjudications wherein we gave consideration to perceptions or appearances of conflict, we do not follow those decisions to the extent that they rely upon the appearance language in the Preamble of Act 170 which was deleted by Act 9 of 1989. Further, although those decisions were decided under Act 170 of 1978 which has been amended by Act 9 of 1989, we may accept the underlying rationale regarding the demarcation between the use of public office for its stated governmental function as opposed to use for private /business/ political purposes. As we noted in Pancoe, Opinion 89 -011: In applying the above provisions of the Ethics Law to the instant matter, we note that Section 3(a) of the Ethics Law does not prohibit public officials /employees from outside business activities; however, the public official /employee may not use the authority of office for the advancement of his own personal financial gain. Thus, although you are not prohibited under Section 3(a) of the Ethics Law from entering into a partnership which would provide consulting or marketing services, you could not perform your private business using Commonwealth facilities or personnel. In particular you could not use the telephone, postage, staff, equipment, research materials, personnel or any other printed /drafted material as a means, in whole or part, to carry out your private business activities. In addition, you could not during Commonwealth working hours, solicit members of the General Assembly or others to promote or conduct your marketing and consulting business. Subject to the qualifications noted above, Section 3(a) of the Ethics Law would not prohibit you from entering into the private partnership arrangement. Id. at 4. In addition, we have held that a public official /employee has his first loyalty to the public office rather than his private personal interests. Crisci, Opinion 89 -013. In applying the provisions of Section 3(a) of the Ethics Law quoted above to the instant matter we find that the installation and maintenance at no cost to the Commonwealth in your office for campaign or personal use would not be prohibited by the Ethics. Law for the following reason. Section 3(a) of the Ethics Law in defining Ms. Barbara Hafer Page 7 conflict requires that there be a use of the authority of office to obtain a private pecuniary benefit for the public official /employee, a member of his immediate family or business with which he or member of his immediate family is associated. In this case, the installation of the private phone would not be through the "authority of office" as defined in the Ethics Law. That phrase defines the term to be the actual power, the exercise of which is necessary to perform the duties which are unique to that particular office. The installation of the telephone at personal /campaign expense does not relate "to the performance of duties and responsibilities unique to a particular public office..." Secondly, we cannot disregard the unambiguous language of the definition of conflict in an attempt to pursue what we might perceive to be the spirit of the Ethics Law. 1 Pa. C.S.A. 1921(b); Central Electric Co -Op, Inc. v. Pennsylvania Public Utilities Commission, 111 Pa. Commw. Ct. 533 A.2d 1084 (1987). In addition, the element of the private pecuniary benefit is absent because you have stated that all expenses relating to the installation of the phones would be paid for by the campaign or by you personally and that no expense would be incurred by the Commonwealth. Further, we have been advised that no state employees on state time would have any involvement with the telephone(s). Without the necessary elements of the use of the authority of office or private pecuniary benefit, we are constrained to find that such activity would not be prohibited under Section 3(a) of the Ethics Law provided that the telephone(s) would be installed and maintained at no cost to the Commonwealth and that the expenses relating to the maintenance, operation and answering be paid by personal or campaign funds. We hasten to add that we are ruling solely on the very narrow and specific question posed and pursuant to the explicit factual background with which we have been presented. We note our realization that persons serving in highly elected positions are not confined to specific work hours but are generally on duty as the need arises. However, we must hasten to add that public office is a public trust and that the performance of one's public duties is paramount to any considerations which are personal, political, or business in nature. Therefore, the performance and execution of one's public duty must be foremost since the personal phone is installed in the state office facility. 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: The Auditor General of the Commonwealth of Pennsylvania is a public official subject to the provisions of the Ethics Law. Section Ms. Barbara Hafer Page 8 3(a) of the Ethics Law would not restrict the installation at no cost to the Commonwealth of a telephone in a state office to be used for matters of political /personal nature when the expenses relating to maintenance, operation and answering are either paid for_by the or by the public official personally. Lastly, the propriety of the proposed conduct has only been addressed 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 on the advice given. This letter is a public record and will be made available as such. 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. By th Commission, elena G. Hughes, Chair