HomeMy WebLinkAbout214 ThornburghThe Honorable Dick Thornburgh
Governor of Pennsylvania
c/o Jay C. Waldman, General Counsel
Commonwealth of Pennsylvania
Room 225, Main Capitol Building
Harrisburg, PA 17120
Re: No. 82 -119 -C
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
ORDER OF THE COMMISSION
July 13, 1983
Order No. 214
Dear Governor Thornburgh:
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. The individual allegations, conclusions, and findings on which
those conclusions are based are as follows:
I. Allegation: That you used or permitted the use of the Executive Mansion,
a state owned and operated facility, for political fund - raising activities in
contravention of the Ethics Act, 65 P.S. 401, et seq.
A. Findings:
1. As an elected official, the Governor of this Commonwealth, you are a
"public official" subject to the requirements of the Ethics Act.
2. As Governor, you reside in a residence, referred to hereinafter as the
Executive Mansion or the Mansion, located at Front and Maclay Streets in
Harrisburg.
3. This Mansion was authorized and constructed pursuant to the provisions of
the laws of this Commonwealth dealing with the Department of General Services
(DGS) which provides, in pertinent part:
The Authority is created for the purpose of constructing,
improving, furnishing, maintaining, acquiring and
operating ... public buildings for the use of the
Commonwealth, an official residence of the Governor
of the Commonwealth, municipal exhibition halls, State
arsenals ... 71 P.S. 1707.4.
The Honorable Dick Thornburgh
July 13, 1983
Page 2
4. The Administrative Code of 1929, Section 2402 provides, in pertinent part
that:
The Department of General Serivces shall have the power,
and its duty shall be: (a) ... to control and supervise
... the Executive Mansion and the Mansion of the
Lieutenant Governor and to make, or supervise the making,
of all repairs, alterations, and improvements, in and
about such grounds and buildings, including the furnishing
and refurnishing of the same, and also to have general
supervision over repairs, alterations, and improvements to
all other buildings, lands, and property of the State,
except as in this act otherwise provided: ... 71 P.S. 632.
a. Over 100 of these other buildings are leased to various Commonwealth
officials and employees to use as homes.
5. On December 14, 1982 from 5 :30 to 7 :00 p.m. a reception was held at the
Mansion.
a. This reception was held as a result of and at the invitation of the
Governor Thornburgh Committee (hereinafter, the GTC).
b. Invitations to this reception were offered /extended at the cost of
$1,000.00 each and payment for same was to be made to and received by GTC.
c. Permission to conduct this reception was requested on behalf of the
GTC through Frank Kandes, Manager of the Mansion, who is an employee of DGS,
and he estimated that approximately 125 persons were expected to attend.
d. Mr. James M. Seif, Administrative Assistant to the Governor, also has
some responsibility for scheduling the Executive Mansion. Mr. Kandes usually
contacts him in addition to seeking the approval of the Secretary of General
Services. He did approve the GTC request for use of the Executive Mansion for
the rception on December 14, 1982.
e. The Manager (Kandes) advised the Deputy Secretary of DGS about the
request and estimated the personnel needed to conduct the reception.
f. At the conclusion of the reception, the Manager furnished a
calculation of the costs he associated with the reception, including personnel
costs and cost for lighting.
6. The costs calculated by Manager Kandes as set forth in No. 5(f) above
and forwarded to Deputy Secretary of DGS were as follows:
The Honorable Dick Thornburgh
July 13, 1983
Page 3
- Personnel, total hours plus benefits $ 387.69
- Utility charges, extra room lighting for
first floor for approximately 5 hours 30.50
Total $ 418.19
7. A bill for $418.19 was presented to a Mr. Charles Dexter, Republican State
Committee, 112 State Street, in relation to this reception.
8. GTC made no report of monies transmitted to DGS with reference to the
bill /costs as set forth in No. 6 above. However, a check dated February 2,
1983 written on the account of the Republican State Committee for $418.19, was
made payable to the "Commonwealth of Pennsylvania" pursuant to this
bill /invoice (No. 7, above) and was received and deposited by DGS through a
Bureau- Revenue Transmittal which states that:
"The attached check is to reimburse the State for
utilities expended and personnel services rendered for
receptions held by the Republican State Committee at the
Governor's Home on December 14, 1982."
9. According to your Counsel "the practice employed in use of the Home in
these cases - -one of use for a private reception with the Governor's approval
provided reimbursement were made" took place here.
10. GTC is registered as a "political committee" as defined in the Campaign
Expense Reporting Law, Act 171 -1978, 25 P.S. 3241 to 32606, and as such is
authorized to receive contributions and make expenditures as set forth in said
Act.
a. GTC's registration statement filed with the Bureau of Elections as
noted above indicates its existence will be "For the Election Year 1982, then
terminate."
b. GTC filed a Political Committee Registration Statement with the
Department of State, Bureau of Elections, as set forth above as of June 4,
1981 and on the lines following the phrase "This Committee shall support the
following candidates for the election:" are entered "1982" and
(candidate) -- "Dick Thornburgh; (Address) -- "2035 North Front St., Harrisburg,
Pa.; (office Sought -- "Governor "; and (Party) -- "Republican."
c. The Records of the Bureau of Elections reveal a "Candidates
Authorization of a Political Committee and Appointment of Treasurer" form
signed by you on June 4, 1981, relating to GTC. This form includes, above
your signature, the following statement:
"I hereby authorize the above named Committee and
Treasurer to receive contributions and make expeditures on
behalf of my candidacy."
The Honorable Dick Thornburgh
July 13, 1983
Page 4
11. The Chairman and Treasurer of GTC and the Finance Director of the
Republican Finance Committee state that the funds generated from the reception
held December 14, 1982, were treated as were all other funds raised by GTC in
that they were not segregated from other contributions received by GTC so that
no separate record of income and disbursements exists as to the funds
generated from this reception.
12. The Governor Thornburgh Committee campaign expenditures report for the
period from November 23, 1982 to December 31, 1982, shows an expenditure on
December 28, 1982, of $500 to "Richard L. Thornburgh, Main Capitol,
Harrisburg, Pennsylvania" for "campaign expense."
a. Check #1423 in the amount of $500 was issued on December 28, 1982,
and made payable to the order of "Richard L. Thornburgh."
b. There is no evidence in reports filed to date by GTC with the Bureau
of Elections that GTC made any other expenditures or payments directly to you,
a member of your immediate family or a business with which you are associated
or that you personally, a member of your immediate family, or a business with
which you are associated received any payments other than as set forth in (a)
above as a result of the reception held at the Mansion on December 14, 1982.
13. GTC made expenditures to influence your re- election as Governor including
expenditures of $468,084.20 to the Republican State Committee as reported to
the Bureau of Elections.
14. The Republican State Committee made expenditures to influence your
re- election as Governor.
15. You were re- elected as Governor for a four -year term beginning January,
1983.
B. Discussion: As a "public official" your conduct, of course, must conform
to the requirements of the Ethics Act. The provisions of the Ethics Act
pertinent to our review here include Section 3(a) and Section 1 of the Ethics
Act.
Section 1. Purpose.
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
The Honorable Dick Thornburgh
July 13, 1983
Page 5
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.
Section 3(a) Restricted activities.
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).
We will address this later provision of the Ethics Act first, and ask:
Did the December 14, 1982 reception amount to a "use" of your public office to
obtain "gain" other than compensation provided by law for yourself, your
family or a business with which you are associated? It is clear that the
Mansion which is provided to you in your official capacity as Governor
(Findings No. 2 and 3) is public property and is inextricably linked to you as
a public official.
However, the Administrative Code of 1929 gives the Department of General
Services the authority and responsibility to control and supervise the use of
the Executive Mansion. The Department exercised their authority in approving
GTC's request to use the Executive Mansion for the December 14th reception.
While the use of the Mansion clearly generated funds, none of these funds were
paid directly to you, your immediate family, or a business with which you were
associated as that phrase is defined in Section 2(a) of the Ethics Act 65 P.S.
402 except as set forth in Finding No. 12.
We find that you authorized the Governor Thornburgh Committee to
generally act on your behalf and to solicit and expend funds to support your
re- election, and approved the use of the Executive Mansion provided
reimbursement was made. We find no violation of Section 3(a) because the
costs were reimbursed by the Republican State Committee, and there is no
evidence that you, a member of your immediate family, or a business with which
you were associated benefitted financially from this reception except for
reimbursement for campaign expenses as set forth in Finding No. 12.
We have also considered this matter in light of Section 1 of the Ethics
Act to determine whether these circumstances present either a conflict or the
appearance of a conflict with the public trust. The question is one
reasonably answerable in the affirmative or negative. On one hand the Mansion
is your home and as with any home should be freely used. Under these facts
and where no clear, positive restrictions on such use are present, it is
The Honorable Dick Thornburgh
July 13, 1983
Page 6
reasonable to conclude this use presents neither a conflict nor the appearance
of a conflict with the public trust. On the other hand, it can be just as
reasonably concluded that this home is provided to you because of your public
office to execute better your public duties and should be held and used in
trust and that events such as the December 14th reception -- some proceeds
from which might have been received by you as reimbursement for campaign
expenses -- may be said to conflict with or appear to conflict with the
public trust. On these points the State Ethics Commission is unable to
agree.
We are concerned with the apparent lack of clear and concise law and
regulation governing the use of the Executive Mansion and the more than 100
other residences provided for Commonwealth officials and employees to be used
as homes. We urge the General Assembly to enact and
and promulgate regulations that clearly govern the to s he uses that may legislation m be
of these properties for fund - raising activitiesay be made
Conclusion: The State Ethics Commission finds that
you
Section 3(a) of Act 170, the State Ethics Act. While the�Commission not
able to agree as to whether or not there was an appearance of a conflict with
the public trust under the provisions of Section 1 of Act 170, the Commission
encourages efforts to clarify the use of the Executive Mansion and the more
than 100 houses provided to Commonwealth officials and employees for use as
houses through legislative action or executive regulation.
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 be made available as a public document 15 days after service unless
you file documentation with the Commission which justifies reconsideration
anti /or challenges pertinent factual findings. See 51 Pa. Code 2.38. 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).
By the Commission,
Lt.1 »rte
aul J. Tiith
Chairman
PJS /rdp
Commissioner Smith filed a
Concurring Opinion
Commissioners Weiss, Conner
and Hill filed a
Concurring Opinion
CONCURRING OPINION IN GOVERNOR THORNBURGH ORDER #214
OF JULY 13, 1983 BY PAUL J. SMITH, COMMISSIONER.
I agree with the conclusion that the Governor should not be held
personally to have violated Section.3(a) of the Ethics Act. However, I reach
this conclusion for reasons different from those expressed in the previous
discussion. Because of the important issues in this case and to articulate my
conclusions derived from the law applied to these facts, I respectfully submit
the following analysis and opinion.
Initially, I must address some of the questions which have been raised
about the progress and integrity of our investigation and the State Ethics
Commission authority to conduct this investigation. While the questions deal
with valid areas of concern, the Commissions responsibility is to the public
for whom this law was passed and we must act in a manner which assures them of
our impartiality and thoroughness. We must also give to each person involved
in an investigation a fair, objective hearing and opportunity to give his or
her views and present documentation which may bear on the case.
An allegation that a public official has engaged in activities that may
result in either a referral to an appropriate law enforcement officer for
possible criminal prosecution or a finding of a conflict with that official's
public trust is not a question which can or should be answered in a simple yes
or no manner. A question of this nature requires a judgment arrived at only
after we have gathered and carefully considered all information and documents
which may relate to the case. Indeed, the General Assembly in enacting the
Ethics Act recognized this crucial difference by
for the issuance of opinions which are based solely ° on d the information
provided by the requestor and investigations which require that the Commission
gather, review, and decide upon the facts.
The Order issued in this case is based on an investigation that includ ed
legal research on the use of public property, the collection and review of
campaign financing reports of the Governor Thornburgh Committee and the
Republican State Committee which received funds from the Governor Thornburgh
Committee, a review of campaign financing reporting requirements, the
determination of the approval process for the use of the Mansion for
non - governmental functions, the identification and roles of persons involved
in this use of the Mansion, and interviews and contacts with many
individuals.
There have also been a number of public comments on the use of the
Executive Mansion for fund - raisers. Some of these require a response not
because they are pertinent to our conclusions but because they are not and if
allowed to remain unanswered, would obscure the real issues. It has been
claimed that this complaint is based upon partisan politics. We will not
attempt to ascertain the motives of either those who oppose the use of the
Mansion for political fund - raisers or those who support is political and the issues faced by o e ion use. However, our
similar commissions, have political ramifications But these ram, as miff 10ns
as other
cannot be allowed to influence our decision. Despite u the references cto
Concurring Opinion
Paul J. Smith
Page 2
partisanship in this matter, which I reject in their entirety, and the
questions as to the qualifications of the members of the Ethics Commission to
judge this case, I submit that it is the legal responsibility of the Ethics
Commission to assure the public with respect to the conduct of public
officials.
It has also been said that affairs of this kind have been held before.
That may be true, but that is history and does not make the present action
necessarily right or wrong. The decision we face must be made in accordance
with the Ethics law. We face only one issue in making this :decision and that
is whether the use of the Governor's Mansion to raise campaign funds is a
violation of the Ethics Act or presents a conflict or the appearance of a
conflict with the public trust.
On the merits of this matter, initially, I agree that the Mansion is
provided to the Governor as a home but I also believe that it retains its
characteristics as a public building and as such has reasonable restrictions
which are not placed upon an individual in his private home. We are also
aware that there are over 100 other buildings leased to Commonwealth officials
and employees to be used as homes and in keeping with our system of laws are
mindful that a ruling about the use of the Mansion would apply equally to the
public buildings provided to these other officials and employees. However, we
must ask the Mansion is provided to the Governor as a home and as part of
the compensation associated with the Governor's office. The answer is
obvious: These facilities are provided to enable the Governor to better
execute his duties as Governor. The Mansion is not "
be used at will merely because it is provided to him as "officialoresior to
dence." As evidenced by the fact that a public entity
S
maintains it, and in this case permitted the Mansion to for uthis it,
reception, the Mansion is clearly ub1ic property. Indeed, this question was
addressed and answered in an 1880 Opinion of the then Attorney General Henry
W. Palmer:
... The Executive mansion is the property of the State,
furnished for the accommodation of the Governor in the
transaction of his official duties, public and private and
under his control for the use of such citizens as may have
occasion to visit him there. The accident of its location
at a place other than that occupied by the Executive
chamber is immaterial in determining whether it is to be
regarded as a part of the Executive Department. The
Legislature considered such a building necessary for the
proper accommodation of the chief officer of the State and
accordingly provided it.
From this ruling and the law providing for the Department of General Services
control of this building, it is clear that the Mansion is ublic property.
Concurring Opinion
Paul J. Smith
Page 3
Of course, the Mansion is provided as a residence but this situation is
not materially different from the manner and motive in which over 100 homes
are provided by the Commonwealth to other public employees and officials such
as prison wardens, state college presidents and park superintendents. The
fact that these properties are provided as "residences" does not affect the
fundamental premise that they are provided to facilitate the execution of the
duties of the public employees or public officials. The Mansion as
public
property, is given to be held and used in trust for the public by the
Mansion's current residents. The scant
where the underlying purpose of possession, acquisition or e
use n of c prope r t at i s
to provide for a public use, the persons /entities entrusted with holding and
managing that property do not have the power to authorize or relinquish that
property to a purely private use. See Larsen et. al. v. DuBois Borou h
School Directors, 24 Dist. 680 (1914 , also known as Larsen V. Cawthra, 42 C.
449 (1914).
I agree with the rulings indicating that where facilities are provided
for the convenience and use of persons in the execution of their public roles
or jobs, those facilities may not be subverted by public officials/employees
ees
to their own use or profit. See U.S. Y
may not rent his government v Butler, CMR 11:445 holding that one
a M A t96 -su pp lied lodgings; U.S, y. Ta lor, CMR 26 :276, 9
where military defendant was charged with misuse of Post Exchange
(PX) privileges when he purchased cigarettes in excess of amounts required for
his personal use and resold the excess for profit; and U.S. v. Robinson, MR
7: 618 (ACM 5651), where despite the fact that
material loss, defendant was punished for embezzlement e me n trelating e to d PX- '
purchased cigarettes which he resold at a profit.
Applying these concepts to this matter, it is clear to me that this
residence /Mansion must be held as public property, in trust, which has as its
primary purpose the accommodation of the Governor and his family so that the
Governor may be better able to execute his responsibilities as Governor. Any of this facility which is purely private in character and exclusionary i
n is necessarily subject to question,
Legal scholars may argue that this reception was permitted because -the
Governor could surely "entertain" a few friends in his "home" without viola-
ting the Ethics Act. Undoubtedly, this is true.
not the simple gathering of friends and family. Ith was aafcommercialeaffair
with the sole overt aim of raising money to subsidize campaign debts and
coffers. The Governor Thornburgh Committee arranged this affair and thei -r
campaign expense reports show that large amounts of money were transferred to
the Republican State Committee and lesser amounts transferred to county
political committees and contributed to individual candidates. Logic and
common sense compel me to firmly reject any suggestion that such commerciali-
zation can be justified as a gathering of friends and, therefore, an accep-
table use of this publicly provided and subsidized property.
Concurring Opinion
Paul J. Smith
Page 4
The Governor is not entitled by law to sell, rent, or allow the use of
this public property for his own personal financial benefit. This
public
property is not provided to you as Governor to enable you to make a personal
profit. The Legislature, in authorizing and providing this Mansion cannot
reasonably be said to have the Rower or to have intended to allow such a use
of this public property, anymore than it can be said that
you
your publicly- provided car, or aircraft. Research indicatesthatewhere to rent
building is provided for a public purpose, the public authorities are
22werless to allow its diversion from its P rimar
and meson v. Gallitzin, 164 Pa. 629, 30 A.482 Y purpose. See Larsen, supra
Co., v. Cit of 0 {allon, 43 Ill. App. 3d 3482 2 and O F allon Development
1293 1976 , aff d 71 6
I11. App. 3d 220, 27 Ill. Dec. 613, 389 N.E. N. E. 2d
(1979). Some assert that a specific prohibition must
1293
this 7 use of
public property for this affair would be prohibited. To the contrary, I
believe that absent a specific legislative authorization sanctioning the use
of the Mansion for personal gain, there can be no such use. See Opinion of
the Attorney General, No. 75 -20 -B regarding the use of state aircraft by the
Governor. Thus, the proceeds from this
construed as "compensation" Political fund- raiser cannot be
by the use of the official residence provided a to e you by law though garnered
The remaining question is whether this "use" of our
property was to secure personal fin ancial While Y the pGo office/
rnor
Committee purports not to know how much money was
wasraised throughthe T Executive
Mansion fund - raiser, it is clear that a substantial amount of money was
generated. Despite all our efforts, we are unable to establish an acceptable
record of the amount of money raised by the December 14, 1983 fund - raiser and
the disbursement of these funds. Neither the Chairman nor the Treasurer of
the Governor Thornburgh Committee has these records, we are told. The
Commission gave you the opportunity to meet with our investigator to provide
information on this subject but - through ou
saw no need to meet or to provide informations counsel - you stated that you
The Governor Thornburgh Committee campaign expense report for the
from November 23 to December 31, 1982, shows period
o
Expense." Based on the documentation providedbywthe Governor00Thornburghaign
Committee, this payment, appears to be a dollar for dollar reimbursement of
campaign expenses you incurred and does not constitute financial gain as that
term is used in Section 3(a) of the Ethics Act. However, these proceeds were
used to help secure or pay costs associated with
12). Your re- election did enure to Your re- election (Finding No.
way other than by securing the continuationrofna o l l financial beGover, rrno. in no if
Th
fact that you did not personally receive and use these except for
the $500 in expenses noted above (some of which may have derived from this
reception), does not resolve the question of whether you received "financial
Concurring Opinion
Paul J. Smith
Page 5
gain." Your gain, though indirect is apparent, in my estimation. Indeed, I
voted not to terminate this investigation because the answers and explanations
given to our inquiries leave a substantial doubt as to the use or intended use
of those funds. The Governor Thornburgh Committee could transfer funds
remaining in their coffers to you or other candidates or committees for
purposes other than reimbursement for campaign expenses. Diversion of funds
generated from the use of the public property entrusted to you for this
private, personal or potentially profitable purpose may well be within the
activity censured by Section 3(a) of the Ethics Act.
Two considerations, however, prompt me to conclude, as does the Commis-
sion, that no personal liability should arise in this case. Your approval for
the use of the Executive Mansion appears to have been a general polic
approval and not one specifically adopted for this affair. y
although you authorized the Governor Thornburgh Committee to on
your behalf to solicit and expend funds to support your re- election, see No
10c above, in order to find you in violation of Section 3(a), I believe we
would have to find that you authorized the use of this public property speci-
fically for your financial gain. Second, there is evidence (Finding No. 8
that payment was provided for the costs associated with this reception as they
were calculated by Mansion Manager Kandes. While I seriously question whether
$418.19 provides adequate reimbursement for the costs associated with this
reception, this calculation and payment represent an effort to calculate and
to reimburse the Commonwealth for the more obvious costs of this private.
reception.) These considerations lead me to conclude that no violation of
Section 3(a) should be found or pursued.
However, this entire matter must also be reviewed in light of Section 1
of the Ethics Act. The use of these funds to pay your campaign expenses was
certainly of financial interest to you. Section 1 of the Ethics Act states
that public office is a public trust and .2 effort to realize personal
financial gain through public office ... is a violation of that trust." The
Mansion is provided to you, in trust, as a part of and because of the public
office you hold. The Mansion; as stated above, is a part of the
"compensation" you receive by virtue of your public office and any effort to
realize personal financial gain from that office, i.e. the political
fund - raiser held at the Mansion, violates the public trust under which the
Mansion is provided, held and used. You realized financial gain from this
reception. The political committees garnering money from this fund - raiser
made expenditures or transferred funds to entities which made expenditures to
support your re- election campaign. This Commission previously unanimously
held that the use of public facilities by an incumbent to secure re- election
raises the appearance of a conflict with the public trust. Cessar, 82 -002.
Concurring Opinion
Paul J. Smith
Page 6
In Cessar, we unequivocally stated that:
We must be able, for purposes of interpreting and applying
the Ethics Act, to separate your role as incumbent serving
your constituents and your role as candidate serving your
personal interests in attempting to secure re- election.
Cessar, supra, at p.5.
We have previously and unanimously concluded that:
... pursuit of one's political goals must be
disassociated, as much as possible, from the obligation of
a public official to perform his or her official
responsibilities. We have found the use of public
facilities and equipment and personnel contrary to the
express provisions or general purpose of the Ethics Act.
See Street, 81 -005; Cessar, 82 -002; McClatchy, 82- 130 -C;
and Breighner, No. 160 p. 3.
I cannot disregard these precedents or dismiss this matter without
reference to the compelling logic and conclusions we expressed in these cases.
There is no doubt that, as in these rulings, you have a personal and a
financial interest in your own re- election. You used the public property
entrusted to you as a means to achieve your personal ends. This cannot be
approved in light of the law, logic, and our own precedent.
Some would distinguish the Cessar ruling on the premise that a
legislator's office is not provided to him for a residence. In my opinion,
this is a distinction without a difference. The office or residence is
provided for a public purpose - -to provide constituent services in the case of
the legislator or to provide easily accessible living facilities and a place
for carrying out public responsibilities in your case. A building, whether it
is used as an office or home, may not be legitimately used for private gain or
to perpetuate an incumbent in office. I believe that Section 1 is implicated
when your public office is used in any effort to realize financial gain
-- your re- election -- thereby violating the public trust. This constitutes
an appearance of a conflict of interest with the public trust.
As Governor, you are generally responsible for insuring that public
property is not misused. More specifically,
for insuring that the Mansion, the public property rovided for you are responsible
official residence, is not misused. To this end I conclude thatypoliticals an
fund - raisers of the kind at issue here should not have been held and that,
absent specific legislative authorization sanctioning such a use as was
present here, should not be held or authorized in the future.
Concurring Opinion
Paul J. Smith
Page 7
Although the Commission is currently equally divided on the question of
whether such activities constitute an appearance of a conflict with the public
trust, we had previously by letter of December 13, 1982, indicated that this
fund - raiser was inappropriate. I now have no hesitation in cutting through
the legal niceties that might, in some strict and narrow construction, allow
such practices to continue and urge again that you take a leadership role in
removing any appearance of a conflict with the public trust by
and regulations and legislation if necessary, to insure that the rdignity roles
the Governor's home is not violated in the future.
PJS /rdp
aul J. S h
Commissio er
1 The labor and lighting costs included in Manager Kandes calculation are not
questionable in themselves. I submit, however, that other "exposures " 'to '-
which such purely private receptions subject the Commonwealth, as owner of
the Mansion, may include: public liability; civil rights - torts and charges;
workers' compensation for public employees "loaned" by the Commonwealth or
hired by GTC for the evening of the reception and others too numerous to
recount. These "exposures" are real, but difficult to calculate. I note,
however, that where the Commonwealth "rents" other public properties such as
the Forum Building, rules and regulations govern and provide for bonds to
reduce, if not eliminate, the risks /exposures to which the Commonwealth may be
subjected by virtue of such authorized usage by private rou s
4 Pa. Code 87.7(b) and also Appendix A and B thereto. g p /persons. `See
CONCURRING OPINION IN GOVERNOR THORNBURGH'S
ORDER OF JULY 13, 1983 #214
BY COMMISSIONERS WEISS, CONNOR AND HILL
We agree with the unanimous conclusion in the Official Opinion
that there were no violations of the Ethics Act in this case.
We also agreed with the unanimous decision to express the division
within the Commission on the question of an appearance of a con-
flict by the statement in our Official Opinion which set forth
the possible differing perceptions regarding the events in question.
We were fully prepared to abide by that decision.
In view of the lengthy concurring Opinion which has now been
filed by Commissioner Smith, however, we feel compelled to file
this concurring Opinion setting forth our shared views. This is
particularly so because of our fundamental - disagreement with the
entire thrust of Mr. Smith's Opinion. The use in that Opinion
of selective facts and inapplicable legal citations, together with
untenable reasoning and conclusions, genuinely concerns us as it
reflects on the Commission as a whole.
Initially, we continue to question the Commission's practice
of engaging in public discussion, and particularly, the making
of findings about possible appearances of impropriety in cases
where we have found that no violations have, in fact, occurred.
Several Commissioners appear to believe that this right is implicit
in Section 1 of the Act. That Section is a preamble which articu-
lates the legislative purpose behind the Act and does not proscribe
any conduct. Accordingly, we are troubled by attempts to use this
Section in a substantive way which we do not believe the legislature
ever intended. This is particularly so since there is another
section of the Act clearly entitled "Restricted activities" which
sets forth the conduct the legislature intended to proscribe.
In his Opinion, Commissioner Smith states that "It has also
been said that affairs of this kind have been held before. That
may be true, but that....does not make the present action neces-
sarily right or wrong." This type of reasoning not only misses
the point, but does a disservice to the Commission's inquiry.
The point is not whether something is right because it has
been done in the past. The Commission has agreed that what happened
here is not a violation. The point is whether what has happened
without official or public protest in the past is relevant to a
discussion about public appearance. Chief executives have histori-
cally and openly used the White House and state mansions to enter-
tain political supporters and contributors for many years without
public condemnation. For that practice to be discouraged in the
future, on a prospective basis, is one thing. It is quite another
for Mr. Smith to ignore history and retrospectively single out
one chief executive and one incident for condemnation under the
"appearance" theory.,
Even Mr. Smith acknowledges that it is proper for the Gover-
nor to use the executive mansion to entertain friends -
personal use. He ignores, however, the fact that the only purely -
means
a Governor, without independent wealth, has to extend to political
friends and supporters the kind of hospitality normally shown to
friends is to have them into the executive mansion. Clearly, an
entrance fee is not required to go to the mansion since any citizen
may tour it or attend any number of public receptions held there
free of charge under the policy of the present Administration.
Unfortunately, this critical fact has been overlooked in the con-
curring Opinion.
Perhaps the most tortured conclusion in the Smith Opinion
is that the Governor derived personal financial gain from this
reception. The term "personal financial gain" was no doubt selected
because it appears in Section 1 on which Mr. Smith purports to
base his Opinion. The term, as used ir, the Act, use of one's office to personally enrich oneselfc.leaIn eed g
cited as authority by Mr. Smith deal 'with people personally poc-
keting proceeds from the sale of government property or privileges,
something that clearly did not happen _ in case.
In assessing the relevant legislati =ve intent, it is important
to recognize the historical context in which this Act was passed
a reaction to the scandals and criminal convictions that plagued
state government at that time. We firmly believe that the legisla-
ture intended this term to refer to those who were using their
official position or .influence to make money "on the side" in addi-
tion to their public compensation. passage of the Act having been
prompted by notorious cases of extortion, kickbacks and bribery
that preceeded enactment of the Ethics Act.
In his Opinion, Commissioner Smith distorts the meaning of
this phrase and demeans the serious purpose of the Commission which
is to focus on the type of wrongdoing which prompted the legislature
to pass the Ethics Act of 1978. He then adopts a strained theory
which is necessary to fit the facts of this case into the distorted
meaning he ascribes to the language in Section 1.
Commissioner Smith reasons that the Governor derived personal
financial benefit from this reception because it raised funds that
assisted in his re- election which in turn secured the continuation
of his salary. This not only grossly and unfairly impugns the
motive of the Governor, and implicitly, other elected officials
for seeking public office, but reflects a complete ignorance of,
or willfull disregard of, the economics of the private sector.
If the Governor were interested in personal financial benefit,
one must believe that he could have foregone re- election and ob-
tained substantially more compensation in the private sector.
Applying Commissioner Smith's reasoning, almost anything an elected
official who is eligible for re-election may do in the course of
performing his or her official duties can be held to enure to his
or her personal financial benefit.
Commissioner Smith contends that this result is .mandated at
least as to the use of an official building, by the Cessar Opinion.
We disagree_ He states that the Cessar ruling should not be dis-
tinguished on the premise that a legislator's office is not provided
to him as a residence. Once again, he misses the point.
The Cessar ruling is based on (i) stated concerns about
possible public misperceptions in seeing an election campaign
operated from an office the public knows exists to provide govern -
mental services to constituents; and, (ii) because of the difficulty
in assuring the public that governmental and campaign expenses
were being proportionately separated. That line of reasoning,
and the opinion which resulted, are simply inapplicable to the
relevant facts of this case.
The public has been long aware that executive mansions are
used for a variety of functions, some governmental and some private..
Under guidelines enforced by the Department of General Services,
it is also easy to assure the public that expenses aie being propor-
tionately distributed, as they were in this situation.
We have concentrated on the most disturbing aspects of the
Smith Opinion, particularly those with potential future impact
on the way elected officials conduct their affairs. The fact that
we have chosen to not review other portions of the Smith Opinion
should not be construed as agreement with the reasoning or conclu-
sions expressed therein.
We believe it is the Commission's function to assess and
address each case on the merits in a quasi- judicial fashion. While
we believe that such a process was utlized by the Commission in
its Official Opinion, we felt it necessary and appropriate to ex-
press our strong reservations about the manner in which the Smith
Opinion engaged in gratuitous moralization and sought to broadly
impose personal views in lieu of the strict fact -- finding and objec-
tive adjudication that is our proper role
Dated: July 25, 1983 j J
CARL WEISS, Commissioner
HERBERT CONNOR, Commissioner
C - 7:1LOJv.^.,-a-. 141 1\
SHERMAN HILL, Commissioner