HomeMy WebLinkAbout126 RappaportThe Honorable Samuel Rappaport
House of Representatives
200 S. Juniper Street
Philadelphia, PA 19107
RE: #82 -16 -C
are:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
June 18, 1982
ORDER OF THE COMMISSION
No. 126
Dear Representative Rappaport:
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 no violation of Act 170.
The individual allegations and findings on which our conclusion is based
I. Allegation: That you used your public office for personal - financial gain
by mailing campaign material paid for through the use of your public- general-
expense fund.
II. Findings:
1. You currently serve as a member of the House of Representatives of
the Commonwealth of Pennsylvania and as such are a "public official"
subject to the Ethics Act.
2. You are ' re- election by running in the May, 1982 primary and
the November, 1982 general election.
3. You were first elected to the House as of 1970 and as a service to
your constituents and others you initiated and currently send a
newsletter, entitled "The Rappaport Report ", hereinafter, the
"Report."
4, These reports were initially sent /mailed at your own expense because
the Rules of the House did not provide for reimbursement for the
expense.
5. Current House rules now state that:
"Such allowable expenses of members may be used
for any legislative purpose or function, including
but not limited to the following:
The Honorable Samuel Rappaport
June 18, 1982
Page 2
(3) Rent for legislative office space; purchase
of office supplies; postage; telephone and
answering services; printing services and rental
only of office equipment; voucher and vendor's
receipt, except for postage expense. No
reimbursement or expenditure shall be made out of
any appropriation account for any mass mailing
including a bulk -rate mailing made at the
direction or on behalf of any member which is
mailed or delivered to a postal facility within
sixty (60) days immediately preceding any primary
or election at which said member is a candidate
for public office.
Mass mailing shall mean a newsletter of similar
maiing of more than fifty (50) pieces in which the
content of the matter is substantially identical.
Nothing in this rule shall apply to any mailing
which is in direct response to inquiries or
requests from persons to whom matter is mailed,
which is addressed to colleagues in the General
Assembly or other governmental officials or which
consists entirely of news releases to the
communications media." (emphasis supplied).
6. By letter dated December 8, 1981, you wrote a letter addressed to
"Dear Friend ", discussing the re- districting required for legislative
districts and you enclosed a copy of the Rappaport Report issued most
recently (previously) to the December 8, 1981 letter.
a. The subjects dealt with in the Report were the "Budget ",
"Schools ", "No -Fault Insurance" and "State -wide Banking."
b. The Report also outlined the hours and location of your District
Office.
c. The letter dated December 8, 1981 described the affect the redis-
tricting as determined by the Reapportionment Commission, indi-
cated that some areas previously in the legislative district
served by Representative Berson might be shifted to your district
and stated that due to the expected "retirement" of Represen-
tative Berson, you might be the only incumbent running for re-
election in the "new" district.
d. The letter does not however solicit votes; specifically appeal
for political support; refer to political opponents in upcoming
electoral contests or appear to be primarily designed to advance
your electoral prospects.
The Honorable Samuel Rappaport
June 18, 1982
Page 3
e. The rest of the December 8, 1981 letter outlined your areas of
concentration during your six terms in the House and stated that
the previous location of your District Office would be shifted to
"center city" to reflect the "new" district lines and solicited
the views of the addressees on matters before the legislature.
f. This letter and enclosed Report was mailed to 34,000 persons.
g. Some of these persons are residents of your "old" district and
some are residents of the "new" district.
7. The cost of this mailing as set forth in No. 6 above was $3,820.00
as reflected by a receipt from the Office of the Chief Clerk of the
House.
8. The letter of December 8, 1981 and attached Report constituted a
legitimate legislative or official mailing and as such are within the
purview of your official business as a member of the House.
III. Discussion: Section 3(a) of the Ethics Act prohibits the use of public
office for personal financial gain. See 65 P.S. 403(a). A legislator
may not use his office -- or in this case public money (postage)
-- which is to be expended only for "legislative" purposes to secure or
primarily advance his own personal goal of re- election. A legislator,
however, when running for re- election cannot be restrained because of
Section 3(a) of the Ethics Act from performing his official or
legislative business during the campaign. The question can be reduced
to simply whether the activity (mailing) in question constitutes
"official business" of the member or not. If not, then the activity
amounts to using the public purse to finance purely personal efforts and
violates the Ethics Act.
The difficult portion of the question relates to drawing a
rational line around the term "official business." The Federal
"franking" statute relating to legislative mailing privileges is of some
assistance in addressing. this question. See 39 U.S.C. 3210. Initially,
we note that we agree with those cases under the federal law which hold
that the question of whether an item is "official business" or not does
not turn on the character of the addressee as a constituent or a
non - constituent of the legislator, making the mailing. See
Schaiffo v. Helstoski, 492 F.2d 413 (3rd Cir. 1974), A mailing to
non - constituents does not automatically evoke a conclusion that the
mailing is not "official business" and therefore improperly "franked."
See also Bowie v. Williams, 351 F. Stipp, 628 (D.C. Pa. 1972). Thus, a
mailing to potential constituents in the legislator's "new" district ie.
non - constituents at the time of mailing, does not automatically
determine that the mailing is a non - official one.
The Honorable Samuel Rappaport
June 18, 1982
Page 4
The question remaining is to identify the criteria to be reviewed in
determining whether an item constitutes "official business ", properly
payable from legislative funds. Again, we find the anlysis of several
Federal Courts instructive. Some Courts have, in their analysis of
similar situations asked the following questions in deciding whether or
not a mailing constitutes "official business ":
1. What per -cent of the mailing can be said to be dedicated to
"other matters which strongly lends itself to the suspicion that
it is promotive of getting votes for the sender? In
Rising v. Brown, 313 F. Supp. 824 (D. C. Cal. 1970) a 50% rate of
such material was involved. It is also notable that in Rising,
the mailing was prepared by the same Public Relations firm which
was managing the legislator's election campaign. In Rising the
Court concluded the "franking" privilege had been abused.
2. What was the main content matter of the mailing's written
portions?
a. Did it include appeals for political support?
b. Did it refer to what a member expects to do in the next
session?
c. Did it discuss the upcoming political campaign /contest?
d. Did it refer to political opponents?
e, Can it reasonably be said to relate to legislative
responsibilites.
f. Can mailing be viewed as one designed primarily to advance
electoral prospects? See Schaiffo, supra.
3. How extensive was the mailing? 'Examine total copies and
distribution. In Hoellen v. Annunzio, 468 F.2d 522 (7th Cir.
1972), cert. den. 93 S. Ct. 3001, 412 U.S. 953, a total mailing
of 134,000 copies was sent 100,000 to potential constituents and
34,000 to "old" constituents (defendant was serving
representative in 7th District, running for seat in llth
District). The Court found 34,000 copies were properly "franked"
as official business but 100,000 were for the purpose of
advancing candidacy not properly "franked."
4. When was mailing made? In Rising, supra, a massive state -wide
mailing two weeks prior to election was sanctioned.
Answering these questions, of course, requires us to review the content
of the mailing and the factual context in which the mailing was made.
Ultimately, our objective and subjective analysis, based on these factors is
required. Applying these concepts to the mailing in question, we conclude
that this mailing constituted official business and is, therefore, properly
paid for from public funds. We recognize that political opponents, especially
The Honorable Samuel Rappaport
June 18, 1982
Page 5
a non - incumbent and other persons could arrive at a different conclusion. In
our analysis, however, this mailing was primarily an effort to inform and
advise current and potential constituents and outweighs the assertion that
this mailing was primarily aimed at soliciting their votes rather than their
views. This is particularly true where, as found above there is only passing
reference to the upcoming election, no mention of your opponent, the mailing
contained no direct appeal for votes, was made well prior to the primary and
was a part of a long- standing practice of similar communications (through your
Reports) with citizens in your locality.
Finally, we note that this decision does not affect our ruling in Cessar,
82 -002. In Cessar, the District Office of a legislator was to be uspd for
campaign purposes -- clearly a personal use -- and we concluded that such a
use would (even assuming proper reimbursement for costs of phone lines etc.)
give rise to an appearance of a conflict with the public trust. There we
would be unable to legitimately separate the role of the legislator as
candidate from that of incumbent. Here, in our anlysis, the mailing in
question does not create a similar appearance of a conflict where the prime
objective of the activity is public /official business as opposed to being
initiated and designed to promote a personal re- election bid.
IV. Conclusion: The activity in question, analyzed in light of the concepts
referred to above, does not violate Section 3(a) of the Ethics Act, nor create
the appearance of a conflict of interest.
Our files in this case will remain confidential in accordance with
Section 3(4) 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).
SSG /rdp
Sincerely
Paul / Smith
Chai rntan