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HomeMy WebLinkAbout90-015 StefankoSTATE 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 Dennis C. Harrington James M. Howley Daneen E. Reese DATE DECIDED: June 22, 1990 DATE MAILED: July 9, 1990 Mr. Robert J. Stefanko 90 -015 341 S. Bellefield Avenue Pittsburgh, PA 15213 Re: Conflict, Public Official /Employee, School Director, School District Employee, Frequent Flyer Credits, Business Related Travel, Private Pecuniary Benefit, Personal Trip. Dear Mr. Stefanko: 1990. i This Opinion is issued in response to your request of May 8; I. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon school directors or employees from personally utilizing airline tickets that they receive by accumulating frequent flyer miles from trips relating to official school district business. II. Factual Basis for Determination: As solicitor for the School District of Pittsburgh (District), you request an opinion concerning the application of the Ethics Law to frequent flyer credits which are obtained by school district officials or employees through travel on official business. You specifically inquire as to whether the personal utilization of the frequent flyer credits by public officials or employees would transgress the Ethics Law since the frequent flyer credits were earned while traveling for and paid by the school district on official business. You additionally set forth that the U.S. Air Frequent Flyer Program allows frequent flyer credits to be given only to the individual/Who actually makes the flight and earns the credit. Furthermore, you state that U.S. Air does not allow under any circumstances for the Mr. Robert J. Stefanko Page 2 transfer of the credits to the individual's employer, regardless of whether the employer is a private corporation or a government body. You conclude by requesting our opinion as an aid in the development of a new travel policy which will address the frequent flyer issue. III. Discussion: Pittsburgh School District directors and employees are public officials and public employees respectively as those terms are defined under the Public Official and Employee Ethics Law. 65 P.S. Section 402; 51 Pa. Code Section 1.1. As such, they are subject to the provisions of that law. 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 interes 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. "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. Mr. Robert J. Stefanko Page 3 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 and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the voje, official action, or judgement of the public official /employee wduld be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. Initially, since you do not question the scope of the coverage of the Ethics Law to various employees of the District, it will be assumed that the individuals in question are "public employees" so that the scope of our discussion will be limited to the issue of whether the utilization of frequent flyer credits, gained through the exercise of official duties as public officials or employees of the District, to obtain free air travel for personal use is allowable under Section 3(a). Section 3(a) of the Ethics Law quoted above specifically provides in part that a public official may not use the authority of public office or employment to obtain a private pecuniary benefit for himself, his immediate family or a business with which he or a member of his immediate family is associated. The two operative elements within Section 3(a) are the phrases use of authority of office and private pecuniary benefit. It is clear that being granted free air travel for personal use is a private pecuniary benefit for the public official /employee. We believe that a District director or employee under Section 3(a) would be prohibited from personally utilizing air travel frequent flyer credits which were accumulated while traveling on District business because such action would constitute a use of authority of office. Traveling to and from various locations must clearly be required as part of carrying out the obligations of the school director or employee. The ability to expend public school district funds in aid of such may be solely exercised by school district officials and employees and is part of the lawful authority vested in such officials. As such the decision to travel and the authority to expend public funds constitute part of the power vested in school district officials and employees by law. Since the exercise of such power would be in aid of the performance of the specific duties of a school director or school district employee, the requisite elements of "authority of office or employment" would be met. If it were not for the exercise of such duties and responsibilities which necessitated traveling on business in an official capacity, then the individual could not accumulate such points or credits. Therefore the use 4f the Mr. Robert J. Stefanko Page 4 authority of office would clearly generate the accumulation of such credits. Although the school directors or employees may continue to accumulate frequent flyer credits, they may not redeem the credits for use on a personal trip. The Ethics Law would not restrict the individual from utilizing the final bonus certificate for a free flight or reduced fare on a trip which relates to future District travel. We note that our decision is consonant with determinations made by other states' ethics commissions, as well as the federal government, which have ruled that personal use of the frequent flyer credits is prohibited. Oregon's ethics law states in pertinent part: No public official shall use his official position or office to obtain financial gain for himself, other than official salary, honoraria or reimbursement of expenses, or for any member of his household, or for any business with which he or a member of his household is associated. (ORS 244.040(1)). The Oregon Commission issued an advisory opinion, I.A.O. 252, in which it was determined that all such benefits from frequent flyer programs are obtained through use of position or office and therefore, must accrue to the governmental body. Massachusetts in EC- COI -88 -22 also prohibited personal use of bonuses obtained while on business travel under their statute which is dissimilar in phraseology to the Ethics Law. Section 3 of G.L.C. 268A of Massachusetts' Ethics Law prohibits state, county or municipal employees from soliciting or accepting anything of substantial value for or because of any official act they have performed or will perform. Additionally, Section 23(b)(2) prohibits a public employee from using or attempting to use his or her position to secure for his or herself or others unwarranted privileges or exemptions which are of substantial value. That commission primarily focused on interpretations of the phrases "substantial value" and "unwarranted privileges" in reaching its conclusion and did not address the issue from the perspective of use of position. Additionally, the Federal government has codified its policy on the issue: All promotional materials (e.g., bonus flights, reduced -fare coupons,...) received by or incident to the employees in connection with Mr. Robert J. Stefanko Page 5 official travel or incident to the purchase of a ticket for official travel or other services...are due the Government and may not be retained by the employee...When an employee receives promotional material from any commercial source incident to official travel, the employee shall accept the material on behalf of the Federal Government and relinquish it to an appropriately designated agency official. (41 CFR 30- 1.6(b)). We follow the decisions rendered in these other jurisdictions because the requisite private pecuniary benefit and use of authority are present under these circumstances. The Preamble of the Ethics Law "declares that 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 addition, the direction in Section 1(b) of the Preamble that public officials should not be discouraged from maintaining their contracts with their community through their occupations and professions has no application to the factual matter before us. Finally, we note that our conclusion is consonant with our decision in Cappabianca, Opinion 89- 014 -R. In that opinion we determined that it was contrary to Section 3(a) of the Ethics Law as a use of authority of office for a member of the General Assembly purchase tickets for business travel from his own travel agency and to charge his legislative district account for the rental of his district office which is in a building he owns. Therefore, any frequent flyer credits or award certificates received by or due the individual in connection with official travel, paid for by the government agency by which he is employed, are due to that agency and must be used for official travel only; the utilization for his own personal travel is prohibited since such activity would be a private pecuniary benefit obtained through the use of authority of office. Since this issue is one of first impression, this opinion will have prospective application from the date of its issuance. 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 Law. IV. Conclusion: School directors and certain employees are public officials,or employees subject to the provisions of the Ethics Law. Section 3(a) Mr. Robert J. Stefanko Page 6 of the Ethics Law prohibits in part a public official /employee from using the authority of his office or employment to obtain a private pecuniary benefit for himself. Under Section 3(a) of the Ethics Law, any frequent flyer credits or award certificates received by or due the individual in connection with official travel, paid for by t Y}e government agency by which he is employed, are due to that agen and must be used for official travel only; the utilization for his own personal travel is prohibited since such activity would constitute private pecuniary benefit obtained through the use of authority of office. This opinion will have prospective application from the date of issuance. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(10), the person who acts in good faith on this opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. 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 t Commission d )4L ,/ Helena G. Hughes, Chair