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HomeMy WebLinkAbout97-005 FerloDear Mr. Ferlo: I. ISSUE: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt Rev. Joseph G. Quinn Boyd E. Wolff Julius Uehlein DATE DECIDED: 2/21/97 DATE MAILED: 3/7/97 97 -005 Jim Ferlo President of City Council City of Pittsburgh 510 City- County Building Pittsburgh, PA 15219 Re: Public Official; Member; City Council; Mass Mailings; Constituents; City District; Purchase with Public Funds of Database of Registered Voters from County Department of Elections. This Opinion is issued in response to your advisory request letter dated January 8, 1997, as supplemented by your subsequent letter dated February 11, 1997. Whether, under the Public Official and Employee Ethics Law, a City Council Member may use public funds to purchase from the County Department of Elections a database which includes the names /addresses of all registered voters in his council district in order to communicate through mass mailings to the constituents within his council district on legislation, city services, public works projects, and other topics. II. FACTUAL BASIS FOR DETERMINATION: As the President of City Council for the City of Pittsburgh, you have requested an advisory on behalf of yourself and your fellow Council Members. Ferlo, 97 -005 March 7, 1997 Page 2 In your initial advisory request letter dated January 8, 1997, you submitted the following facts. Pittsburgh City Council Members often need to communicate in writing with large numbers of constituents on a host of issues. You commonly notify your constituents about zoning board hearings, planning commission hearings, and council public hearings. it is also common to communicate to constituents about proposed legislation, recently enacted legislation, changes in city services, city public works projects, and many other topics. You state that the most efficient way for Council Members to communicate with their constituents in writing about the large variety of topics and issues would be through the use of a computerized database of all registered voters which database is compiled and supplied by the Allegheny County Department of Elections. This database contains all registered voters including democrats, republicans, independents, and third party members. You state that Council Members mall information regardless of party affiliation and you do not believe there is any partisan or political purpose involved in obtaining the list from the Department of Elections. You seek an opinion as to whether it would be appropriate under the Ethics Law for the. Pittsburgh City Council Members to purchase these databases from the Department of Elections with public funds. By letter dated February 6, 1997, you were notified of the date, time, and location of the public meeting at which your request for an advisory was to be considered. By letter dated February 11, 1997, you submitted the following additional information for the Commission's consideration, All nine Members of Council of the City of Pittsburgh are now elected by district. Therefore, the Council Members are frequently involved in neighborhood land use issues, neighborhood public safety issues, or neighborhood issues involving the provision of municipal services. Often, Council Members convene neighborhood meetings on these issues, or public hearings are scheduled in front of Council, the Planning Commission, and /or the Zoning Hearing Board. You state: Because of the nature of district council representation, it has almost become standard operating procedure for council members to notify their constituents in writing about these public hearings and meetings. In fact, many of the issues we communicate to our constituents about involve their vested legal interests. There is no more effective or efficient way to communicate with large numbers of constituents than generating mailing labels from computer databases. Unfortunately, to our knowledge, the only source of databases containing the majority of the residents in our council districts is the Allegheny County Department of Elections. (February 11, 1997 letter of Ferlo). Noting that the database contains all registered voters, and that the goal for yourself as well as for other Council Members is to inform Ferlo, 97 -005 March 7, 1997 Page 3 as many affected constituents as possible about any given issue, you state that you and the other Council Members mail information out regardless of party affiliation. III. DISCUSSION: It is initially noted that pursuant to Sections 7(10) and 7(1 1) of the Ethics Law, 65 P.S. §§407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, this Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 P.S. §§407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. It is further initially noted that you have requested an advisory on behalf of yourself and your fellow City Council Members, but there is no indication that your fellow City Council Members have given you permission to inquire on their behalf. Consequently, this Opinion must be directed to you individually, with regard to your own prospective conduct, even though the principles set forth in this Opinion would necessarily be equally applicable to the other Pittsburgh City Council Members as well. As a Member and President of City Council for the City of Pittsburgh, you are a public official as that term is defined under the Ethics Law, and hence you 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 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 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 of his immediate family or a business with which he or a member of his immediate family is associated. Ferlo, 97 -005 March 7, 1997 Page 4 "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. The narrow question that you have posed involves the proposed purchase, with public funds, of a computerized database for use in mass mailings to constituents within your own Council district. We are cognizant of the various concerns that can arise as to publicly- supported mailings by a public official to his constituents. There is undoubtedly a need to maintain the public official's contact with his constituency. However, there is undoubtedly a political, public relations, and /or name identification value that can accompany a mailing of this sort, particularly when it occurs on or about the time of political campaigning. We have very carefully weighed all of these concerns in considering your inquiry, and we conclude that the purchase of the computerized database with public funds for use in mass mailings to constituents within your Council district would be permissible under Section 3(a) of the Ethics Law as long as all of the following conditions are observed: (1) public funds may only be used to purchase the list of voters in the particular district that you represent; (2) any such mass mailing that is supported by public funds may only be made to the registered voters within the particular district that you represent; (3) the use of the computerized database must be strictly and exclusively limited to official business of the City of Pittsburgh, must be completely nonpartisan, and must not he for private business, political campaigning, or any other private purpose; and (4) no such mailings may be sent out during a period of sixty days prior to an election in which you are a candidate for public office. If all of these conditions are met, Section 3(a) will not be transgressed because there will be no element of a private pecuniary benefit. Any purchase /use of the database contrary to the above conditions creates a risk of transgressing Section 3(a). In this regard, violations of Section 3(a) of the Ethics Law have been found where government staff, equipment and /or facilities have been used for private business, campaigning, or other private purposes. See, Freind, Order No. 800; Rockefeller, Order No. 1004. We would emphasize that this Opinion is limited to addressing the narrow question that has been posed. We have not addressed herein any broader mailing issues, although such may be brought to this Commission as your needs require. 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. Ferlo, 97 -005 March 7, 1997 Page 5 IV. CONCLUSION: The President of City Council for the City of Pittsburgh is a public official subject to the provisions of the Ethics Law. The said President's proposed purchase, with public funds, of a computerized database of all registered voters as compiled and supplied by the Allegheny County Department of Elections, for use in mass mailings to constituents within his judicial district on issues that concern them, will not transgress Section 3(a) of the Ethics Law as long as all of the following conditions are observed: (1) public funds may only be used to purchase the list of voters in the particular district that is represented; (2) any such mass mailing that is supported by public funds may only be made to the registered voters within the particular district that is represented; (3) the use of the computerized database must be strictly and exclusively limited to official business of the City of Pittsburgh, must be completely nonpartisan, and must not bg for private business, political campaigning, or any other private purpose; and (4) no such mailings may be sent out during a period of sixty days prior to an election in which the public official is a candidate for public office. This Opinion is limited to addressing the narrow question posed. Broader mailing issues have not been addressed in this Opinion. 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 thirty 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 the Commission, 6ern oftusAu6 Pub Daneen E. Reese Chair