HomeMy WebLinkAbout20-002 ConfidentialPHONE 717-783-1610 STATE ETHICS COMMISSION FACSIMILE 717-787-0806
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HARRISBURG, PA 17120-0400
OPINION OF THE COMMISSION
Before: Nicholas A. Colafella, Chair
Mark R. Corrigan, Vice Chair
Ro er Nick
Melanie DePalma
Michael A. Schwartz
Shelley Y. Simms
DATE DECIDED: 10/28/20
DATE MAILED: 11/2120
To the Requesters:
This Opinion is issued in response to your letter dated October 6, 2020, by which
you requested a confidential advisory from this Commission.
ISSUE:
Whether the Public Official and Employee Ethics Act ("Ethics Act' 65 Pa.C.S. §
1101 et §s P. �q., would impose prohibitions or restrictions upon ember of the
Pennsyl
vania General Assembly 'State Leg islator")--specifical ly a Member of Chamber
A -,-with regard to serving on the 2ard of Directors of a for -profit [type of private entity]
("Private Entity") and participating in its operations; and if the State legislator would be
permitted to serve on the Board of Directors of the Private Entity and participate in its
operations, whether it would be permissible for:
(1) Any biography published by the Private Entity to reference the State Legislator's
then -current position with Chamber A; or
(2) The State Legislator's title of [title as a Member of Chamber A] to be included
before his name on letterhead, business cards, or other materials of the Private
Entity.
Ill. FACTUAL BASIS FOR DETERMINATION:
You have been authorized by the Honorable [name and position] ("State Legislator
B"'t, to, request a confidential advisory from this Commission on his behalf. You have
su mitted facts that may be fairly summarized as follows.
In a private capacity, State Legislator B has been offered a seat on the Board of
Directors ("Board,") of a for -profit type of private entity] ("Private Entity") which is
headquartered in [geographical location outside of Pennsylvania] and has a division that
operates in Pennsylvania. The Private Entity is privately -owned by shareholders.
Customers of the Private Entity include [types of customers].
Confidential O inion, 20-002
November 2, 2020
Page 2
State Legislator B would not have an active role in the day-to-day operations of the
Private Entity. As a member of the Board, State Legislator B would vote on matters
affecting the overall management of the Private Entity. State Legislator B would receive
income from the Private Entity in the form of a salary and stock in the Private Entity.
Additionally, State Legislator B would be reimbursed for his travel expenses incurred in
fulfilling his duties as a member of the Board.
None of State Legislator B's work on the Board would utilize state resources (such
as taxpayer -funded computers, phones or personnel), and such work would not be
performed in any state-owned office.
Additionally, you indicate that State Legislator B would make the appropriate
disclosures on his Statements of Financial Interests.
Finally, you state that if State Legislator B would become aware of any direct
interest of the Private Entity in legislation before the General Assembly, he would seek a
ruling under the Rules of Chamber A.
Based upon the above facts, you ask whether the Ethics Act would impose
prohibitions or restrictions upon State Legislator B with regard to serving on the Board
and participating in the operations of the Private Entityy; and if State Legislator B would be
permitted to serve on the Board and participate in tle operations of the Private Entity,
whether it would be permissible for:
(1) Any biography published by the Private Entity to reference State Legislator B's
then --current position with Chamber A; or
(2) State Legislator B's title of [title as a Member of Chamber A] to be included before
his name on letterhead, business cards, or other materials of the Private Entity.
You also pose a general question as to whether there are other Advices, Opinions,
or Commission Orders to which we would direct State Legislator B's attention as
examples of proper or improper behavior.
By letter dated October 16, 2020, you were notified of the date, time and location
of the executive meeting at which your request would be considered.
III. DISCUSSION:
It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics
Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the
facts that the requester has submitted. In issuing the advisory based upon the facts that
the requester has submitted, this Commission does not engage in an independent
investigation of the facts, nor does it speculate as to facts that have not been submitted.
It is the burden of the requester to truthfully disclose all of the material facts relevant to
the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the
extent the requester has truthfully disclosed all of the material facts.
As a Pennsylvania State Legislator, State Legislator B is a public official subject to
the provisions of the Ethics Act.
Section 1103(a) of the Ethics Act provides:
§ 1103. Restricted activities
(a) Conflict of interest. --No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
Confidential Opinion,, 20-002
November 2, 2020
Page 3
65 Pa.C.S. § 1103(a).
The following terms related to Section 1103(a) are defined in the Ethics Act as
follows.
§ 1102. 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
fecuniary benefit of himself, a member of his immediate
amily or a business with which he or a member of his
immediate family is associated. The term 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 famil 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.
"Immediate family." A parent, spouse, child, brother
or sister.
"Business." Any corporation, partnership, sole
proprietorship, firm, enterprise, franchise, association,
organization, self-employed individual, holding company, joint
stock company, receivership, trust or any legal entity
organized for profit.
"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.
65 Pa.C.S. § 1102.
Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict"
or "conflict of interest," 65 Pa.C.S. § 1102, pursuant to Section 1103(a) of the Ethics Act,
65 Pa.C.S. § 1103(a), a public official/public employee is prohibited from using the
authority of public office/employment or confidential information received by holding such
a public position for the private pecuniary benefit of the public official/public employee
himself, any member of his immediate family, or a business with which he or a member
of his immediate family is associated.
However, we note that to the extent the activities of a State Legislator relate to
"legislative actions" introducing, considering, debating, voting, enacting, adopting, or
approving legislation), they are constitutionally controlled and are exempt from the
purview of the Ethics Act and the State Ethics Commission. Confidential Opinion, 05-
002; Corrigan, Opinion 87-001.
In applying the above provisions of the Ethics Act to the instant matter, you are
Confidential O inion, 20-002
November 2,
Page 4
advised as follows.
The questions that you have posed to this Commission do not pertain to "legislative
actions," but rather, to State Legislator B's prospective activities ofpossiblyserving on
the Board, participating in the operations of the Private Entity, and allowing his official title
to appear in various materials of the Private Entity.
You are advised that Section 1103(a) of the Ethics Act would not prohibit State
Legislator B from serving on the Board and participating in the operations of the Private
Entity in his private capacity. If State Legislator B would serve on the Board, the Private
Entity would be considered a business with which State Legislator B is associated, 65
Pa.C.S. § 1102, and Section 1103(a) of the Ethics Act would prohibit State Legislator B
from using his status as a State Legislator or otherwise using the authority of his public
office ---subject to the exemption for "legislative actions" delineated above —or using
Commonwealth resources or facilities or confidential information accessed or received as
a result of being in his public position in furtherance of pecuniary benefit(s) for the Private
Entity, such as, for example, business opportunities. Cf., Confidential Opinion, 19-003;
Confidential Opinion, 05-002.
While serving as a Board member, State Legislator B would be permitted to have
his then -current position with Chamber A listed in a biograpby published by the Private
Entity. However, State Legislator B would not be permitted to allow his title of [title as a
Member of Chamber A] to be included with his name on letterhead, business cards, or
other types of materials used in furtherance of pecuniary benefit(s) for the Private Entity,
such as to market the Private Entity (cf., Confidential Opinion, 19- 03).
Your question as to whether there are other Advices, Opinions, or Commission
Orders to which we would direct State Legislator B's attention as examples of proper or
improper behavior is too general to answer in an advisory opinion, but we note that you
and/or State Legislator B are welcome to seek further guidance from this Commission as
specific questions arise.
The propriety of the proposed conduct has only been addressed under the Ethics
Act; 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. Specifically not addressed herein is the Legislative Code
of Ethics, 46 P.S. § 143.1 et seq., or the Rules of Chamber A.
IV. CONCLUSION:
As a Member of the Pennsylvania General Assembly ("State Legislator")—
specifically a Member of Chamber A --the Honorable [name and position ("State
Legislator B") is a public official subject to the provisions of the Public Official and
Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et seq. Based upon the submitted
facts that: (1) in a rivate capacity, State Legislator B has been offered a seat on the
Board of Directors {`Board") of a for -profit [type of private entity] ("Private Entity") which
is headquartered in [geographical location outside of Pennsylvania] and has a division
that operates in Pennsylvania; (2) the Private Entity is privately -owned by shareholders;
(3) customers of the Private Entity include types of customers]; �4) State Legislator B
would not have an active role in the day-to-day operations of the rivate Entity; (5) as a
member of the Board, State Legislator B would vote on matters affecting the overall
management of the Private Entity; (6) State Legislator B would receive income from the
Private Entity in the form of a salary and stock in the Private Entity; (7 State Legislator B
would be reimbursed for his travel expenses incurred in fulfilling his uties as a member
of the Board; (8) none of State Legislator B's work on the Board would utilize state
resources (such as taxpayer -funded computers, phones or personnel , and such work
would not be performed in any state-owned office; (9) State Legislator would make the
appropriate disclosures on his Statements of Financial Interests, and (10) if State
Confidential O inion, 20-002
overn er ,
Page 5
Legislator B would become aware of any direct interest of the Private Entity in legislation
before the General Assembly, he would seek a ruling under the Rules of Chamber A, you
are advised as follows.
To the extent the activities of a State Legislator relate to "legislative actions"
(introducing, considering, debating, voting, enacting, adopting, or approving legislation),
they are constitutionally controlled and are exempt from the purview of the Ethics Act and
the State Ethics Commission.
Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), would not prohibit State
Legislator B from serving on the Board and participating in the operations of the Private
Entity in his private capacity. If State Legislator B would serve on the Board, the Private
Entity would be considered a business with which State Legislator B is associated, 65
Pa.C.S. § 1102, and Section 1103(a) of the Ethics Act would prohibit State Legislator B
from using his status as a State Legislator or otherwise using the authority of his public
office —subject to the exemption for "legislative actions" delineated above ---or using
Commonwealth resources or facilities or confidential information accessed or received as
a result of being in his public position in furtherance of pecuniary benefit(s) for the Private
Entity, such as, for example, business opportunities.
While serving as a Board member, State Legislator B would be permitted to have
his then current position with Chamber A listed in a biograpby published by the Private
Entity. However, State Legislator B would not be permitted to allow his title of [title as a
Member of Chamber A] to be included with his name on letterhead, business cards, or
other types of materials used in furtherance of pecuniary benefit(s) for the Private Entity,
such as to market the Private Entity.
The propriety of the proposed conduct has only been addressed under the Ethics
Act.
Pursuant to Section 1107(10) of the Ethics Act, 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.
By the Commission,
Pi �e�solafelle
Chair