HomeMy WebLinkAbout130 McClatchyThe Honorable Richard D. McClatchy, Jr.
House of Representatives
Commonwealth of Pennsylvania
Room 245, Main Capitol Building
Harrisburg, PA 17120
RE: #82 -29 -C
Dear Representative McClatchy:
are:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
ORDER OF THE COMMISSION
June 18, 1982
No. 130
Note: Letter dated 7/2/82
from Rep. McClatchy is
a part of the Order &
should be included when
copying 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 a violation of Act 170.
The individual allegations and findings on which our conclusion is based
I. Allegation: That as a Representative you used House of Representatives'
funds, ie postage meter and House stationery for personal, political purpose
of mailing a letter to persons (not your constituents) and supporting the
candidacy to office of State Representative Bert Daikeler.
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. Terms of all members of the House expire this year and you and
Representative Bert Daikeler are seeking re- election by running in
the May, 1982 primary and the November, 1982 general election.
a. You serve in and are seeking re- election in the 149th Legislative
District.
b. You also serve as Chairman of the Montgomery County Legislative
delegation.
c. Representative Daikeler serves in and is seeking re- election in
the 53rd Legislative district which is within the Montgomery
County legislative delegation.
Honorable Richard D. McClatchy, Jr.
June 18, 1982
Page 2
3. Current House rules now state that:
"Such allowable expenses of members may be used for
any legislative purpose or function, including but
not limited toathe following:
(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
acount 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
mailing 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)..
4. By letter dated Febu"rary 2. 1982 you wrote to various
persons, particularly the Committee - people in the 53rd Legislative
district.
a. This letter constituted a request for support for the
re- election bid of Representative Daikeler.
b. This letter indicated your "hesitancy" in writing to
persons "across the county (Montgomery) and involving
yourself in "political matters" outside of your district.
c. The letter outlined the legislative accomplishments
and experience of Representative Daikeler and solicited
the addressee's "help" for Representative Daikeler.
5. The cost of postage for mailing this letter to 57 persons was
$11.40 and was originally mailed with postage from the House postage
meter.
Honorable Richard D. McClatchy, Jr.
June 18, 1982
Page 3
6. Upon being advised of this investigation, you immediately
requested that the Executive Director of the House
Appropriations Committee provide a cost analysis of items
associated with this mailing and then you voluntarily
reimbursed the House in the amount of $39.74 as evidenced by
by receipt dated June 1, 1982.
a. This amount represents an estimate of the time /labor/
material associated with this mailing as well as the cost of
postage as set forth above.
b. The further breakdown on these costs, other than postage,
is as follows: (1) Stationery cost of $32.04 per ream
(500 sheets), or $.064 per sheet at 57 sheets for a total
of $3.65; (2) Envelope cost of $18.88 for 500, or $.038 per
envelope, for a total of $2.17; (3) typewriter rental of IBM
Mag -Card unit at $195.85 per month, used for typing 57 letters
and envelopes which took less than three hours for a total cost
of $2.18; and (4) Secretarial services, including benefits at
the rate of 37% of salary for the typing time involved for a
total of $6.78 per hour for three hours and a total of $20.34
for the entire project.
7. The mailing was primarily designed as a personal appeal for political
support and was not designed to solicit the views of citizens or
voters, inform your constituents or citizens or otherwise fall within
the purview of official or legislative business.
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)
or personnel - -which is to be expended only for "legislative" purposes to
secure or primarily advance his own personal goals. A legislator,
however, when dealing with re- election matters cannot be restrained
because of Section 3(a) of the Ethics Act from performing his official or
legislative business during the campaign. The question in this and most
other cases, however, 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 or the
legislator making the mailing. See Schaiffo v. Helstoski, 492 F.2d 413
(3rd. Cir. 1974). A mailing to non- constituents does not automatically
Honorable Richard D. McClatchy, Jr.
June 18, 1982
Page 4
evoke a conclusion that the mailing is not "official business" and
therefore improperly "franked." See also Bowie v. Williams, 351 F. Supp.
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,
or to citizens in general, does not automatically determine that the
mailing is a non - official one.
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 analysis 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 or in your case, your
colleague 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
responsibilities?
f. Cao 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" constitutents
(defendant was serving representative in 7th District, running for
seat in 1lth District). The Court found 34,000 copies were properly
"franked" as official business but 100,000 were for the purpose of
advancing candidacy and therefore, not properly "franked."
Honorable Richard D. McClatchy, Jr.
June 18, 1982
Page 5
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 did not constitute official business and is, therefore, not
properly paid for from public funds.
In our analysis there can be little doubt that this mailing was designed
to solicit political support, albeit for another Representative. The mailing,
however, if it accomplished or contributed to that colleague's re- election,
would have benefitted your political party and you as Chairman of the
Montgomery County delegation. This mailing falls squarely within the realm of
personal, rather than official, legitimate legislative business, as you have
apparently acknowledged by your refund of the cost associated with same to the
House.
IV. Conclusion: The activity in question, analyzed in light of the concepts
referred to above, violated Section 3(a) of the Ethics Act. However, given
the fact that you have already reimbursed the House for the costs associated
with this mailing, the State Ethics Commission will take no further action.
This activity should not recur.
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 4/Smith
Chaff rrnan
RICHARD A. McCLATCHY, JR.
Chairman
717 - 787 -1711
Paul J. Smith, Chairman
State Ethics Commission
308 Finance Building
Harrisburg, PA 17120
Dear Mr, Smith:
July 2, 1982
HOUSE OF REPRESENTATIVES
COMMONWEALTH OF PENNSYLVANIA
HARRISBURG
MICHAEL B. RcNSTEIN
Executive Direv4tlir , .
717 - 787 -1994 tP
I have reviewed the Commission findings and conclusions of law regarding
Case #82 -29 -C, which are contained in a letter addressed to me, which is dated
June 18th, 1982.
I must disagree with the conclusion that the findings of fact as set out in this
letter constitute a violation of Section 3(a) of the Ethics Act. A Section 3(a) vio-
lation turns on whether the activities in controversy involve the use of public office
to obtain financial gain for the respondent, for a member of the respondent's
family or for a business with which the respondent is associated. In order to
sustain a violation pursuant to this statutory provision, it is not enough to estab-
lish that the respondent expended public resources for other than an official
purpose. In my judgment, the essential element of a Section 3(a) offense is the
financial benefit that accrues to a respondent (or his family or business) as a
result of the extra- official use of public resources. The mailing in no way
enhanced my personal prospects for re- election since none of the letters in con-
troversy were mailed to voters residing in my district. Moreover, my financial,
political or personal position would have been neither enhanced nor diminished by
Representative Daikeler's defeat or victory in the ensuing Primary Election.
Accordingly, it is submitted that the findings of fact set forth in the Commission
letter of June 18th does not present a Section 3(a) violation.
The basis for a finding of personal benefit appears to be set out in the following
part of the relevant paragraph of the Commission letter:
In our analysis there can be little doubt that this mailing was designed to
solicit political support, albeit for another Representative. The mailing,
however, if it accomplished or contributed to the colleague's re- election,
would have benefitted your political party and you as chairman of the
Montgomery County delegation.
Mr . Paul J. Smith
July 2, 1982
Page 2
Thus the Commission letter predicates its finding of personal benefit on two
grounds: (a) benefit to me politically; and (b) benefit to my position as Chairman
of the Montgomery County legislative delegation. In my view, the additional infor-
mation, which will be set out below and which the Commission did not have in its
possession at the time of its preliminary determination, would call for a different
conclusion.
With regard to the first ground, Representative Daikeler's victory or defeat in
the Republican Primary would have no impact on the fortunes of my political party.
Since the election in question was a Republican Primary and both candidates were
active , registered Republicans , my political party would not be adversely affected
by the outcome of this primary. Accordingly, the mailings did not generate and
were not intended to generate any benefit for my political party.
With respect to the second ground, the mailings did not and were not intended
to benefit me in my capacity as Chairman of the Montgomery County legislative dele-
gation. The chairmanship is based on seniority. As senior member of the Montgomery
County delegation, I would have retained this position regardless of which candidate
won the primary and regardless of whether I sent any letters supporting Representative
Daikeler. Even if it could be hypothesized that my position as Chairman would have
been in jeopardy, the loss of the chairmanship would not result in any loss of potential
financial earnings . The position does not provide for the exercise of any personal
or political power. The Chairman receives no compensation or any reimbursement,
from any source whatsoever, for any activities undertaken in this capacity. It is
nothing more than a chairmanship of an informal association of Republican House
members who were elected from legislative districts in Montgomery County.
This is not to justify the mailing that occurred in this particular case. It is to
emphasize, however, that the mailing was the product of carelessness, and that
I did not personally benefit from this mistake.
It was precisely because of this absence of personal or pecuniary benefit, that
I failed to subject the mailing in question to serious scrutiny at the time it was made.
Had the question of personal benefit crossed my mind at the time, I would have
automatically done one of two things: (a) I would have paid for the mailing out
of personal or campaign funds; or (b) I would have decided against any mailing at
all.
The press of legislative business, which focused my concentration elsewhere,
and the de minimus nature of the $39 .74 expenditure in question also contributed to
my failure to give the mailing more consideration at the time it was made.
As you noted in your letter, I immediately and voluntarily made reimbursement
for the de minimus expenditure. The mailing occurred during a particularly busy
legislative period, and I did not supervise the mailing as closely as I should have to
assure that no state resources were utilized. I thank you for making me aware of this
Mr . Paul J . Smith
July 2, 1982
Page 3
situation and for closing the case. I concur with the view that the mailing in question
on behalf of another Representative, which costs less than $40, should more appropriately
be paid with private funds.
In conclusion, I wish to note that as a long -time supporter and advocate of the
work done by the Ethics Commission, I am pleased with the prompt and courteous
attention you have paid to this matter. I do not concur in the view that a violation
of Section 3(a) occurred as there has been no personal gain in this matter; however,
in light of the Commission's decision to take no action, I choose not to appeal the
finding.
Sincerel
and A. McClatchy,