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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