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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,