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HomeMy WebLinkAbout94-001 HarperRuth B. Harper Modeling School 1427 West Erie Avenue Philadelphia, PA 19140 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Daneen E. Reese, Vice Chair Roy W. Wilt Austin M. Lee Allan M. Kluger Joseph W. Marshall, III DATE DECIDED: 04/29/94 DATE MAILED: 05/04/94 94 -001 Re: Conflict, General Assembly, Representative, Legislative District Office, Private Residence, Utilities, Reimbursement. Dear Ms. Harper: This Opinion is issued in response to your advisory request on December 13, 1993. I. ISSUE: Whether a former member of the General Assembly, under the Public Official and Employee Ethics Law, may seek reimbursement for expenditures paid for utility services which are attributable to that part of her private residence which was used as a legislative district office. II. FACTUAL BASIS FOR DETERMINATION: You request advice regarding the reimbursement for utility services at your former legislative district office. After referencing an Advice of Counsel issued on July 1, 1991 which concluded that you were prohibited from charging the Commonwealth for rent for your legislative district office which was located in your home, you state that you did not charge rent for your district office from mid 1990 through the completion of your service as a House Member in November, 1992. Since your district office was located in your home during that period of time, you expended out Harper, 94 - 001 May 4, 1994 Page 2 of pocket expenses for electricity, gas and water to service your district office. You would like to receive reimbursement from the House of Representatives on a prorated basis for the expenditures as to utility services for your district office. Since your district office was not separately metered, you make your request for gas and electric reimbursement based upon the ratio of the square footage of your district office compared to the size of your home. As a matter of explanation, you hypothesize that if your district office comprised one fourth of the square footage of your entire home, you would seek reimbursement for one fourth of the total cost for gas and electric from mid 1990 until November 1992. As to your reimbursement for water, you would base the ratio on the number of faucets and toilets in your district office compared to the total number of faucets and toilets in your home. After expressing your belief that such an arrangement would provide an equitable reimbursement to you for the expenses paid in order to service the needs of your constituents, you conclude that there is no private pecuniary benefit to you in seeking such reimbursement since you already suffered a pecuniary loss in paying for the utility services. You conclude by requesting advice as to whether such an arrangement would be permitted under the Ethics Law. At the public meeting of April 29, 1994, you provided the following additional facts and arguments. You have used your own furniture and carpet in your district office. When you did charge for rent, you only took $400 even though the legislative cap was $600 which was later raised to $800. After the Cappabianca decision, you attempted to relocate your district office, but you state that there was no office space in your district that was safe to rent. You believe that Cappabianca should be reversed on the theory that it is a waste of taxpayer money and contrary to a system of free enterprise. You argue that since the state is required to pay an amount for a legislative district office, you believe your claim is fair for the rental utilities and the wear on your carpet and furniture. III. DISCUSSION: As a former Representative in the General Assembly of the Commonwealth of Pennsylvania, you were a public official as that term is defined under the Ethics Law, and hence you were 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. Harper, 94 -001 May 4, 1994 Page 3 The following terms are defined in the Ethics Law as follows: 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 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 of 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. In addition, Sections 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 anything of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. In reviewing the question of whether a former representative may receive reimbursement for utility services attributable to that portion of the private residence which was used as a legislative district office, we are guided by our decision in Cappabianca, Opinion 89- 014 -R. It is noted that we are not faced with relitigating Cappabianca but merely applying its reasoning to the narrow, limited analogous situation involving the proposed reimbursement of utility expenses for such a legislative district office. In the cited opinion, we held that a member of the General Assembly was prohibited under the Ethics Law from charging his Harper, 94 -001 May 4, 1994 Page 4 legislative district account with rent for a district office in a building he owned. Our rationale in Cappabianca is insightful to the instant issue: "Although there is statutory authorization for maintenance of a legislative district office and travel to and from Harrisburg, the rental of your own building for a district office and the utilization of your own travel agency to purchase tickets results in a private pecuniary benefit because these allowances are in whole or part inuring to your private financial benefit. You have chosen your building for a legislative office and your travel agency for the purchase of airline tickets thereby generating income in both instances to yourself individually or through the business with which you are associated. Therefore, such would be a use of the authority of office to obtain a private pecuniary benefit. Such benefit is a financial gain which is not provided in law because there is no authorization in the Public Official Compensation Law for the resultant private pecuniary benefit. In fact, it may be argued that such income is prohibited by law since the Act states that "no other compensation shall be allowed whatsoever." Such action results in a private pecuniary benefit through the commissions received by Cappabianca Travel Agency and through the rental received by you as owner of the building." Cappabianca, at 6, 7. For purposes of the Ethics Law, there is no apparent distinction between reimbursed rental and utility payments. The fact that you seek reimbursement of utility expenditures as opposed to rental payments does not dictate a different result under the Ethics Law. Both are expenses incurred to operate a legislative district office so either would involve a use of authority of office in selecting the personal residence to house and operate the legislative district office. Juliante, Order 809. As to both, any reimbursement attributable to that portion of the residence used as a legislative district office would be a private pecuniary benefit to the extent that it would affect or would not require out of pocket expenses. Since that private pecuniary benefit would inure to you personally, such activity would be contrary to Section 3(a) of the Ethics Law. Your argument that you would not be receiving a private pecuniary benefit because you suffered a pecuniary loss in paying for such utility services was made and rejected in Cappabianca: "Regarding the rental situation you have argued that Harper, 94 -001 May 4, 1994 Page 5 you do not profit from the rental arrangement and that in fact you suffer a tax loss due to such. It cannot be denied however that the funds received as rent, offset any loss which would obviously be greater without such." Id. To the extent a perceived loss is realized, a private pecuniary benefit results. We also note that a proration of expenses argument was made and rejected by this Commission in Freind, Order 800. We concluded that Freind as a state representative violated Section 3(a) of the Ethics Law when he sought reimbursement from the Commonwealth for a legislative district office wherein he also conducted a private law practice. In rejecting the argument that there could be no violation if there were a proration of expenses, we stated: To the contrary, it is incontrovertible that the office at 2 Brookline Boulevard as a law office, as well as an occasional campaign re- election office would have existing operating expenditures, regardless of whether any law practice business was generated. Thus, if it were not for the legislative office being located in the same building with a consequent entitlement from the Commonwealth for reimbursement, Freind would have been required to outlay funds for rent, a legal secretary, utilities, equipment and supplies regardless of whether he conducted any law practice activities or received any income from his law practice. But for the integration of the law office and district office, Freind would have to outlay the above enumerated expenditures regardless of the amount of business or income received from the law practice. Id at 45. The Freind case thus stands for the proposition if the underlying activity is impermissible, then a proration of expenses could not be appropriate as to such an otherwise improper activity under the Ethics Law. Unlike in Freind, you have not even quantified your request other than to proffer a theory for reimbursement based on square footage and fixtures. We must therefore conclude, based upon the reasoning and result in Cappabianca, that Section 3(a) of the Ethics Law would prohibit the reimbursement of that portion of utility services which are attributable to the operation of the legislative district office within your personal residence. Harper, 94 -001 May 4, 1994 Page 6 As for your argument that Cappabianca is contrary to a system of free enterprise, we would merely note that free enterprise is a distinct pursuit from public service. The goals or aims of free enterprise may not necessarily coincide with those of public service. Further, when free enterprise conflicts with public service, the duty associated with public office is paramount. Crisci, Opinion 89 -013. Not only is your claim for a pro rata reimbursement of utilities contrary to the Ethics Law, but such a claim is not allowable under the Rules of the House of Representatives. In particular, the House Guidelines specifically provide in part: According to the Rules of the House of Representatives, "all expenditures of funds appropriated to the House or to a member or nonmember officer shall be subject to the expenditure guidelines established by the Rules Committee." The Accounting and Operations Manual of the General Assembly, as modified from time to time, shall constitute the requisite guidelines for the expenditure of all funds appropriated to the House or to any member or nonmember by any appropriation act. Funds from the following appropriation accounts may be used for the following purposes subject to disbursement, documentation and reporting under the provisions. of House Rule 14: * * * II. Member's Home Office Expenses (a) Member's Home Office and District expenses including: * * * (b) Utility services to rented space if separately metered; (Emphasis added) Since you have stated as a fact that your legislative district office was not separately metered from the rest of your home, you were not entitled to reimbursement under the House Guidelines. As noted above, you are not entitled to such reimbursement under the Ethics Law. 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 Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the Legislative Code of Conduct. Harper, 94 -001 May 4, 1994 Page 7 IV. CONCLUSION: A former representative in the General Assembly was a public official subject to the provisions of the former Ethics Law. Section 3(a) of the Ethics Law prohibits a former member of the General Assembly from seeking reimbursement for utility services attributable to that portion of the private residence that was used as a legislative district office. 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. 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 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 the Commission, OYL0,A) &M Daneen E. Reese Vice Chair