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HomeMy WebLinkAbout159 Critchloware: Mr. Paul Critchlow Press Secretary Governor's Office Room 308 -C, Main Capitol Building Harrisburg, PA 17120 Re: #82 -47 -C Dear Mr. Critchlow: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION September 13, 1982 No. 159 NOTE: Sept. 13, 1982 Dissenting Opinion of Carl Weiss must be copied in conjunction with this Order. The State Ethics Commission has received a complaint regarding you and a possible violation of Act 170 of 1978. The Commission has now completed its investigation into these allegations and finds an appearance of a conflict with the public trust. The individual allegations and findings on which our conclusion is based I. Allegation: That as a public employee you participated in political activities, i.e. responding to questions and criticisms of Governor Thornburgh, by using your official title as "Press Secretary to the Governor" and state -paid time in violation of the Ethics Act, particularly Section 1 and Section 3(a) thereof, 65 P.S. 401 and 403(a) respectively. A. Findings: 1. You serve as Press Secretary to Governor Thornburgh and have so served since January 16, 1979, and as such are a "public employee" or "public official" subject to the Ethics Act. 2. As Press Secretary you are considered to be "on call" twenty -four hours per day seven days per week. 3. You are not required to record or "charge" time which might be normally recorded as sick or annual leave hours as you are treated and have been granted status in this respect equivalent to a cabinet-level officer. Paul Critchlow September 13, 1982 Page 2 4. In your capacity as Press Secretary you use the title "Press Secretary to the Governor" on all communiques written or issued on behalf of Governor Thornburgh. 5. In a March 31, 1982 letter addressed to Governor Thornburgh, the Governor's opponent in the upcoming general election, Congressman Allen Ertel, raised three issues: a. alleged threats by Education Secretary Eugene Scanlon to censure Education Department employees communicating with Pennsylvania State Education Association (PSEA) officials; b. debates between the candidates; and c. accepting a voluntary limit on gubernatorial election campaign spending of $1.7 m i l l i o n . 6. On April 1, 1982, a letter was issued responding to the points raised by Congressman - Candidate Ertel's above - referenced letter. a. The April 1, 1982 response was printed on letterhead of "The Governor Thornburgh Committee," hereinafter, GTC. b. GTC is the official entity designed to assist in securing the re- election of Governor Thornburgh. c. This letter was signed by you as "Press Secretary of the Governor." d. You drafted this response by hand at approximately 7:30 p.m. and presented the draft to GTC Director of Communications, Frank Hoffman, to be prepared and distributed. e. This letter was typed, reproduced and distributed by GTC personnel at the expense of GTC and no public funds, or equipment or facilities were used in this effort. Paul Critchlow September 13, 1982 Page 3 f. This response consisted of thirteen paragraphs as follows: - one introductory paragraph; - eight paragraphs dealing with PSEA items and funding for education; - one paragraph relating to the call for debates; - three paragraphs dealing with the call for campaign spending limits; g. In responding to and drafting this letter you felt you were exercising caution in separating your public from your private interests in deciding not to issue this statement through the Commonwealth Press Office and in issuing it through GTC. 7. The GTC has a Director of Communications, Frank Hoffman, as noted above, whose responsibility is to speak to the press and public on campaign- related topics. 8. You are sometimes - -a couple times a week -- called upon by GTC Director Hoffman to verify facts relating to the Governor's record in office or positions on important issues, but you are not involved in running the campaign or GTC. B. Discussion: We immediately address and dispose of any question of violation of Section 3(a) of the Ethics Act which states: No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a) In this instance we find no evidence that you actually used the physical facilities of your public office or public funds (postage, for example) for personal financial gain and, thus, can discern no violation of this provision of the Ethics Act. However, the next question to be addressed is whether this situation implicates Section 1 of the Ethics Act which specifies that: Paul Critchlow September 13, 1982 Page 4 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 order to strengthen the faith and confidence of the people of the State in their government, the Legislature further declares that the people have a right to be assured that the financial interests of holders of or candidates for public office present neither a conflict nor the appearance of a conflict with the public trust. Because public confidence in government can best be sustained by assuring the people of the impartiality and honesty of public officials, this act shall be liberally construed to promote complete disclosure. 65 P.S. 401 Our role in articulating standards under Section 1 of the Ethics Act is a difficult one, particularly in the area of political campaign charges, challenges and responses. We have previously decided that a legislator's district office should not be utilized for campaign purposes because to do so would give rise to the public perception that public facilities were being used for personal, campaign purposes. Cessar, 82 -002. We are not dealing in this case with the use of physical office facilities per se given our findings. This makes our review more difficult because the remaining question of your use of your official title - -Press Secretary to the Governor -- is more subtle and sophisticated. We return to our Cessar ruling for the basic premise, however, that public officials must attempt to separate their roles as public servants and candidates or assistants to candidates. In your case, your personal financial interests are clearly related to the political fortunes of the present Governor. Your official responsibility, however, is to serve the Governor and the public. We acknowledge the difficulty of decisions facing public servants in separating their public roles from their personal affiliations. We also admit that you discerned and separated your public role from your private interests to some degree in this case by realizing that these fundamentally political charges should be addressed through GTC facilities as opposed to public facilities. In this case, we agree with your own assessment that the letter of response should have been issued and handled by the GTC. Given this assessment, however, we believe that total disassociation would have been achieved by not attributing this response to you as "Press Secretary to the Governor." If the letter were issued in your official, public role, this attribution would be acceptable. If, as happened here, the letter was issued as part of and by a partisan, private entity (GTC), you should have refrained from using your official, public title. Compare, Golden, 80 -051. Paul Critchlow September 13, 1982 Page 5 C. Conclusion: Your official title should not be used in association for any similar private purpose, even those of a de minimis nature, in order to avoid the appearance of any conflict between your personal, financial interests and the public trust. Our files in this case will remain confidential in accordance with Section 8(a) of the Ethics Act, 65 P.S. 408(a). However, this Order is final and will become available as a public document within 15 days unless you file documentation with the Commission which justifies reconsideration and /or challenges pertinent factual findings. During this 15 -day period, no one, including the Respondent unless he waives his right to challenge this Order, may violate this confidentiality by releasing, discussing or circulating this Order. Any person who violates the confidentiality of a Commission proceeding is guilty of a misdemeanor and shall be fined not more than $1000 or imprisoned for not more than one year or both, see 65 P.S. 409(e). PJS /jc Sincerely, Paul Ji Smfth Chaim-rail Commissioner Weiss filed a dissenting Opinion in which Commissioner Hill joins. Commissioner Evans did not participate in this decision, DISSENTING OPINION OF COMMISSIONER WEISS TO THE CRITCHLOW ORDER, No. 159, SEPTEMBER 13, 1982 The majority finds that Mr. Critchlow engaged in an "appearance of a conflict with the public trust" when he used the official title of Press Secretary of the Governor under his signature in a letter to Congressman Allen Ertel dated April 1, 1982. I believe that under the circumstances of this case, Mr. Critchlow did absolutely nothing wrong. Nevertheless, I would probably not issue a formal dissenting opinion if this matter were as simple as one action or one occassion by one individual. Rather, I am formally dissenting because the reasoning of the majority in this case is faulty, overreaching, and if allowed to remain unchallenged, could unfairly and adversely affect many other people in similar situations in the future. The Commission's entire theory.in this case rests upon the assumption that anything Mr. Critchlow does to further the prospects of the Governor's re- election is in furtherance of "his [Critchlow's] personal financial interests." This theory, at best, rests upon unwarranted and unsupported speculation. I have seen no factual basis whatsoever for the Commission's assumption that Mr. Critchlow, or any other government official, could not and would not be immediately employable at comparable or greater compensation should the Governor not be re- elected. If one wishes to speculate, a comparison of the differences between salaries in the public sector with those in the private sector would result in the logical conclusion that Mr. Critchlow would in fact earn more money if he were notworking for the Commonwealth. A second, equally fatal,flaw in the majority reasoning, is the presumption that politics and government are neatly separable, even at the height of an election campaign. This assumption defies reality, disregards 200 years of American history, and requires the imposition of an impossible "ivory tower" standard that policy making officials cannot be expected to meet. To carry the majority's reasoning to its logical extension places every incumbent office holder in peril of condemnation by our Commission at times during the period he or she may be seeking re- election, as virtually every action he or she takes may be viewed as enhancing the prospect of his or her re- election. In this case, as the Commission's findings make clear, the Ertel letter was addressed to Governor Thornburgh, as Governor, at his official government address. Further, most of the letter related to criticism of official action taken by the Pennsylvania Department of Education. It is wrong to suggest that the Governor of this Commonwealth should not have the right to respond in his official capacity to such a letter. I do not accept that he cannot exercise that right through his official public spokesman, whose principle job it is to speak for the Governor, I believe that Mr. Critchlow absolutely had the right to draft and send the response which he did on the official stationary of the Governor's Press Office. It therefore makes no sense to impose a requirement that forces Mr. Critchlow to respond to portions of a letter that were purely governmental at one time and place, and other portions of the same letter that are more campaign related, at a different time and place on a separate piece of stationary. I believe that the Press Secretary to a Governor has a right to respond officially to any letter that contains questions or charges about the official conduct of that governor's administration. Nor does he lose that right under the Ethics Act, or any other law, because the author of the original_ letter chose to include matters that are more political and campaign related in nature. It goes without saying that if Mr. Critchlow had the right to reply to the Ertel letter officially, he clearly should not be criticized for exercising the extra precaution of replying on campaign stationary. Of even greater concern to me is the gratuitous discussion by some commission members about "appearances" of impropriety. I seriously doubt whether the Ethics Act authorizes us to do so. While the preamble, or purpose, section of the Ethics Act refers to the desirability of avoiding even appearances of conflicts of interest, there is nothing in the Act itself which justifies our condemning someone because of what he or she might, in our view, "appear" to have done. This is particularly so in this case where the "personal financial gain" necessary to show even an appearance of a conflict of interest simply does not exist. The Ethics Act contains a specific section which sets forth what conduct is prohibited. Nowhere does it prohibit someone from "appearing" to have done something. I believe it is a dangerous practice for a Commission such as ours to issue opinions which create the impression that someone has done something improper when they have not. Absent an extremely compelling reason, I believe this Commission should confine itself to investigations and findings of real wrongdoing and spend less time engaging in presumptions and rhetoric about personal conduct that does not violate any law or regulation. While the Ethics Commission is not a judicial body, there are certain fundamental principles of fairness by which we should be constrained. I cannot imagine a court admonishing someone for appearing to commit a murder after finding that -he had not in fact committed the murder. DATED: September 22, 1982 Commissioner Hill joins in this opinion. :k \ k==<====-15 CARL WE I S S Commissioner