HomeMy WebLinkAbout323 Thornburghv
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
ORDER OF THE COMMISSION
May 18, 1984
Order No. 323
The Honorable Dick Thornburgh
Governor of Pennsylvania
c/o Jay Waldman, General Counsel
Room 225, Main Capitol Building
Harrisburg, PA 17120
Re: File No. 83 -03 -C
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 of
that complaint. The allegations, conclusions of the Commission, and findings on which
those conclusions are based are as follows:
I. Allegation: That you used or permitted the use of the Governor's Home, a
State owned and operated facility, for fund--raising in conjunction with your January,
1983 Inauguration in contravention of the Ethics Act, 65 P.S. 401, et. seq.
A. Findings:
1. As an elected official, the Governor of Pennsylvania, you are a
"public official" subject to the Ethics Act.
2. As Governor, you reside in a residence ( "Governor's Home" or
"Executive Mansion "), located at Front and McClay Streets, Harrisburg.
3. The Governor's Home was authorized and constructed pursuant to
the provisions of the laws of this Commonwealth concerning the Department of General
Services, 71 P.S. § 1707.4.
4. Section 2402 of the Administrative Code of 1929 grants to the
Department of General Services authority to control, supervise and make repairs,
alterations and improvements to the Governor's Home and all other State buildings.
a. Over 100 of the other State buildings are leased to
Commonwealth officials and employees to be used as homes.
b. Each Commonwealth agency is responsible for leasing the
buildings which are under its jurisdiction.
5. The Inaugural Committee sent invitations to over 45,000 persons to
participate in three activities of your January, 1983 inaugural celebration.
a. The Commonwealth of Pennsylvania invited persons to
participate in official inaugural ceremonies at the Capitol on January 18, 1983.
b. Invitations were extended to attend the Inaugural Ball at
Founders Hall, Milton Hershey School, Hershey, Pennsylvania, on January 18, 1983.
c. You and Thornburgh invited guests to a reception at your
residence, the Governor's Home, at 6:00 p.m. January 18, 1983.
6. Subscriptions were solicited to the Inaugural Ball and the reception
at your home, ranging from $75.00 to $1,000.00, with payment for same to be made to
the "1983 Inaugural Committee ".
7. On January 7, 1983 Mr. James Pickard, then Inaugural Committee
Chairman, requested authorization from the Department of General Services to allow the
Inaufgural Committee to hold receptions at your home on January 17 and 18, 1983. His
2
request was directed to Mr. Frank Kandes, who is employed by the Department of
General Services as Manager of the Governor's Home.
a. Mr. Pickard's request stated that the salaries and overtime
pay of all housekeeping, maintenance and support staff, in addition to the reimbursement
for the cost of utilities and any other charges incurred or expended in connection with
the receptions, were to be billed to the Inaugural Committee.
b. On January 13, 1983, Mr. Kandes notified Mr. Gary E.
Crowell, Deputy Secretary for Central Services, Department of General Services, of the
Inaugural Committee's request, including their proposed reimbursement of costs and
expenses.
c. Walter Baran, Secretary of the Department of General
Services, approved the requested use of the Governor's Home for these inaugural
receptions.
8. Following the receptions, on January 24, 1983 Mr. Kandes
calculated the costs for regular and overtime work of the Governor's Home employees
who staffed the receptions to be $1,506.10, and sent those calculations, with advice that
extra lighting for 23.5 hours had also been utilized, to Mr. Crowell.
a. Mr. Crowell billed the Inaugural Committee for $2,224.03,
consisting of the $1,506.10, plus charges for employee benefits and utilities.
b. On February 4, 1983, the Republican State Committee
("RSC") paid this bill.
addresses.
9. There was one Inaugural Committee that used different titles and
a. "The Inaugural Committee ", P.O. Box 440, Harrisburg,
Pennsylvania 17108 was the name and address used by those attending or contributing to
various inaugural fund - raising activities. Checks for subscriptions to the . inaugural
- 3 -
events were to be made payable to the "1983 Inaugural Committee ". These committees
were formed in late November or early December, 1982.
b. "The Inaugural Committee '83, P.O. Box 1624, Harrisburg,
Pennsylvania 17105" was the name used by the committee which registered with the
Department of State on January 10, 1983.
c. The P.O. Box 1624 address, an existing post office box used
by the RSC, was utilized by the Inaugural Committee as it was readily available; the
address of 112 State Street in Harrisburg was also used for the convenience of the
Inaugural Committee staff. This latter address received payments to the RSC identified
in the Contributions and Receipts section of the RSC Campaign Expense Report for the
period of January 1, 1983 to March 7, 1983 as follows:
(1) January 13, 1983 - $40,000
(2) January 14, 1983 - $50,000
(3) January 28, 1983 - $90,000
d. The expenditures listed in Finding 9(c) were confirmed by: (1)
copies of checks submitted to the State Ethics Commission by Mr. Charles E. Dexter, Jr.,
Finance Director of the RSC; and (ii) the 1983 Campaign Expense Report filed by the
Inaugural Committee '83.
10. Those organizing the planning and finances for the inaugural events
were the inaugural committees identified in Finding 9, and the RSC.
11. According to Mr. Dexter, the Inaugural Committee '83 and the RSC
agreed that all bills of the inaugural events would be paid by the RSC, which would
thereafter be reimbursed for such payments by the Inaugural Committee. This method of
payment was utilized as follows:
a. From December 17, 1982 to January 13, 1983, the RSC paid
25 inaugural related bills totalling $70,753.87.
4
b. On January 13, 1983, the Inaugural Committee reimbursed
the RSC in the amount of $40,000 (Findings 9(c) and (d)).
c. On January 14, 1983, the RSC paid 18 inaugural related bills
totalling $10, 079.48.
d. On January 14, 1983, the Inaugural Committee reimbursed
the RSC in the amount of $50,000 (Findings 9(c) and (d)).
e. From January 15, 1983 to April 1, 1983, the RSC paid 81
inaugural related bills totalling $97,764.67.
f. On January 28, 1983, the Inaugural Committee reimbursed
the RSC in the amount of $90,000 (Findings 9(c) and (d)).
12. The RSC maintained the financial records of the Inaugural
Committee, its expenditures were integrated with those of the RSC, and most of its
checks were drawn on the RSC General Fund.
a. On August 5, 1983, Mr. Thomas R. Milhollan, Treasurer of the
Inaugural Committee '83, provided financial records of the Committee to the State
Ethics Commission which reflected the following:
(1) Summary of Inaugural Committee - 1983
Total pledged as of 4/20/83
Debit Memos*
Disbursements - $ 183,947.00
$ 68,648.00
Check deposited in June $ 500.00
$ 69,148.00
* Checks that were cancelled for insufficient funds.
(2) The ledger sheets identify specific payees and check
numbers for $180,697 of the disbursements, and note that additional checks totaled
$3,250.
5
$ 252,595.00
- $ 7,560.00
$ 252,595.00
(3) The $180,000 shown in the Receipts and Contributions
section of the RSC Campaign Financing Report for the period of January 1, 1983 to
March 7, 1983, was not reflected in this report, but was accounted for in the records
subsequently provided (Finding 13).
b. The bills paid by the RSC were not pre - audited by the
Treasurer of the Inaugural Committee.
13. On January 6, 1984, Mr. Dexter provided additional financial
records at the request of the State Ethics Commission, including:
a. A list of contributions received by the Inaugural Committee
from its inception through December 31, 1983.
b. A copy of the RSC's income and expenditure reports for
periods November 23, 1982 through May 2, 1983.
c. Copies of checks written directly from funds of the Inaugural
Committee '83.
d. Bank statements of the Inaugural Committee '83, other than
the initial statement which could not be located.
e. These records did not segregate entries or items relating to
the receptions held at the Governor's Home.
14. The combination of the records provided (Findings 12 and 13)
document the activities of the Inaugural Committee.
a. Funds received from all activities of the Inaugural
Committee were deposited in a bank account in the Drover's and Mechanics Bank, York,
?ennsylvania.
b. The committee raised a total of $260,155.
c. On July 29, 1983, $69,149 of Inaugural Committee funds were
transferred to a Flex Fund in the Mellon Bank, Washington, Pennsylvania.
6
d. This balance, plus the expenditures, equals the total amount
raised by the Inaugural Committee.
e. The funds raised by the reception at the Governor's Home
were not segregated, but all expenditures for the receptions were accounted for in these
reports.
15. $4,200 of Commonwealth funds were budgeted by the Department
of General Services for costs associated with the official inaugural ceremonies.
a. $4,179 of this amount was spent for building materials,
supplies, a sound system for the public viewing stands, and related equipment used during
the formal swearing in ceremonies at the Capitol on January 18, 1983.
b. No other funds were authorized, allocated or used for the
swearing in ceremonies.
c. None of the $4,200 budgeted by the Commonwealth was spent
for the Inaugural Ball or the receptions at the Governor's Home.
16. The Inaugural Committee did not make any payments to you, a
member of your immediate family, or a business with which you are or were associated.
B. Discussion: As a "public official" your conduct must conform to the
requirements of the Ethics Act, which for purposes of our review of this matter, focuses
on Sections 1 and 3(a).
Section 1. Purpose.
The Legislature hereby declares that public office is
a public trust and that any efforts 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 nor the appearance of a conflict
7
with the public trust. Because public confidence in
government can best be sustained by assuring the
people of the impartiality and honesty of the public
officials, this act shall be liberally construed to
promote complete disclosure. 65 P.S. §401.
Section 3. Restricted activities.
(a) 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.
Our initial inquiry is whether the facts and circumstances of this case reveal
any "restricted activities" that are prohibited by Section 3(a) of the Act. That issue may
be framed as whether the January 18, 1983 reception was a "use" of your public office to
obtain "gain" other than compensation provided by law.
Because the public provides the Governor's Home for your residence, the
Administrative Code of 1929 gives the Department of General Services the authority and
responsibility to control and supervise the use of the Governor's Home. The Department
properly exercised its authority in approving the use of the Governor's Home for this
reception, conditioned upon reimbursement to the Commonwealth for all charges, costs
and expenses incurred in connection therewith. Although that reception generated funds,
none of the funds were paid to you, your immediate family, or a business with which you
are or were associated.
We therefore find that the authorized use of the Governor's Home for a
reception on January 18, 1983, for which contributions had been solicited from and made
by those invited or in attendance, was not a violation of Section 3(a) of the Ethics Act, as
all costs associated with the reception were reimbursed to the Commonwealth, and this
activity did not provide any financial gain to you, a member of your immediate family, or
a business with which you are or were associated. To the contrary, this was a use of
8
private, rather than public, money to pay for the events surrounding the inauguration of
the Commonwealth's Chief Executive.
The Commission has also considered this matter within the context of Section
1 of the Ethics Act to determine whether the relevant facts and circumstances might
have presented the appearance of a conflict of interest. We find that they do not present
such an appearance. This conclusion is based upon certain facts and principles, the first
of which was our prior conclusion finding an absence of any of the "restricted activities"
or conduct that are prohibited by the Ethics Act.
Equally important is an understanding of the role that Section 1 of the Ethics Act
properly plays in the deliberations of the Commission. Section 1 is a preamble to the Act
which articulates the legislative purpose of the Act; it does not prohibit or restrict any
conduct. As such, we believe that it is best utilized to express our views about the types
of conduct that may be inappropriate for public officials, thereby providing a guide for
public officials as to their future conduct. Chief executives have historically and
publicly used the White House and their respective state mansions to entertain political
supporters and contributors for many years without public concern. For that practice to
be discouraged in the future, on a prospective basis, is quite different than dramatically
concluding that a given use by a given chief executive suddenly represents the
appearance of a conflict of interest on the part of that chief executive.
The Commission recognizes that the Executive Mansion is provided to you as a
home, where you and your family in fact reside, and we therefore believe that you should
be permitted to enjoy its use as you would with any other home or residence. This would
obviously include your ability to extend to your friends and supporters the special
hospitality of an invitation to your home - which for you is the Executive Mansion.
Because, however, your home is provided by the public, we wish to consider
this issue within the context of our earlier Cessar ruling (82 -002), so that our views in
9
this case may be clearly stated without any doubt as to our continuing support of the
conclusions expressed in Cessar. That ruling was based upon: (i) concerns about public
misperceptions which might have arisen where an incumbent public official's re- election
campaign was directed from the same office that provided governmental services to the
incumbent /candidate's constituents; and (ii) the difficulty in assuring the public that the
office expenses attributable to a political campaign which should be reimbursed to the
Commonwealth were properly and proportionately separated from the expenses incurred
from the governmental use of that same office space.
The Cessar ruling and its supporting rationale are hereby reaffirmed by the
Commission, although its application cannot logically be extended to the facts now being
considered. This case does not present the use of an office, as in Cessar, but of a home,
that the public has specifically provided to its successive occupants for use as their
residence. As noted above, the public has long been aware that executive mansions are
used for a variety of functions, some governmental and some private. The possibility of
public misperceptions from its use as your family's home and residence is substantially
different from their reaction to an incumbent's office space being used as the nerve
center of a re- election campaign. Additionally, because of the supervision and control
exercised by the Department of General Services, the public can be assured that none of
the expenses which result from a. private use of the Governor's Home will be paid by the
public - a policy strictly followed in this case. We therefore have concluded that the
facts and circumstances of this case did not give rise to an appearance of a conflict with
your public trust.
Conclusion: The State Ethics Commission finds that your actions and conduct
did not violate Section 3(a) of the State Ethics Act, nor did the facts and circumstances
at issue give rise to a Section 1 appearance of a conflict with the public trust. As
previously expressed in a prior opinion, the Commission believes that the future private
- 10 -
use of State owned facilities should be clarified and delineated by appropriate
government action.
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 (defined as mailing) unless you file
documentation with the Commission which justifies reconsideration and /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 $1,000 or imprisoned for not
more than one year or both, see 65 P.S. 409(e).
BY THE COMMISSION:
Carl Weiss,
COMMISSIONER
Commissioner Haley joins in the
Commission's conclusion and decision as to
Section 3(a), but does not join in its
conclusion and decision as to Section 1.
Commissioner Smith dissents with Opinion.
DISSENTING OPINION IN GOVERNOR THORNBURGH ORDER NO. 323
OF MAY 18, 1984 BY PAUL J. SMITH, COMMISSIONER.
I respectfully dissent from the opinion and Order of the Commission filed
at No. 323. I must and 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. Indeed, the
"closeness" of the answer to this question is reflected in the vote of the
Commission on this point which followed lenghty, thoughtful debate by the
members of this Commission and which required serious reflection by each
member. I therefore do not join in the conclusion as to Section 3(a) nor the
conclusion as to Section 1 of the Ethics Act and the following Opinion is
based upon this debate and my analysis.
In its statement of purpose, the Ethics Act of the Commonwealth of
Pennsylvania (1978 -170) declares that "the people have a right to he assured
that the financial interests of holders of or candidates for public office
present neither a conflict nor the appearance of a conflict with the public
trust."
Since continued incumbency or the attainment of another public office can
be considered in the financial interests of a public officeholder, the use of
the perquisites of public office for political purposes rather than for
official purposes can be interpreted as presenting at least the appearance of
a conflict with the public trust.
In its decision regarding Representative Cessar, this Commission has
already determined that public officeholders cannot use their publicly funded
office facilities as centers for election campaigns.
When an admission of $500 is charged to an inaugural reception at the
Executive Mansion and when the proceeds from that reception are commingled
with the funds of a committee of a political party, it is consistent with the
principles articulated in the Cessar decision to conclude that the use of the
Executive Mansion for such political fund - raising purposes is an inappropriate
use of a public facility and involves at least the appearance of a conflict
with the public trust. Such a conclusion is influenced not by the political
affiliation of a particular officeholder but by the sincere conviction that
the Commonwealth's highest elected officer should be required to manifest at
least the same degree of public probity and official impartiality in the use
of the public facilities at his disposal as is required of members of the
Commonwealth's General Assembly and which should be required of all public
officials in the Commonwealth.
This Commission has already asked the General Assembly to enact
legislation and the Governor to establish and enforce regulations for the
proper use of residences made available to officials of the Commonwealth and
its agencies. By inviting such action, the Commission has already gone on
record as indicating that there can be inappropriate uses of facilities which
are owned by the Commonwealth and which are made available for the official
use and even for the personal convenience of its public servants.
Dissenting Opinion
May 18, 1984
Page 2
Public residences may be used for the private purposes of their
residents, but not for any purpose which can be interpreted as contributing to
their personal aggrandizement. Since the use of official premises for
political fund - raising can indeed benefit the officeholder whose publicly
funded office or residence is used, such use is, in fact, an abuse and tends
to undermine the confidence of the public who should he assured that the
offices and residences they provide to officials of the Commonwealth are used
for official purposes and not for personal benefit. Payment to the
Commonwealth to compensate for the special public services required on such
occasions is not sufficient to dispel the public impression that an unfair and
inappropriate use hes been made of a public facility and that there has been
at least the appearance of a conflict with the public trust.
Since a contribution to the Inaugural Committee, which was a partisan
political entity, was solicited for attendance at the inaugural reception at
the Executive Mansion, I conclude that the use of the Executive Mansion for
such a reception involved at least the appearance of a conflict with the
public trust.
I also note and deplore the initial lack of cooperation from officials of
the Inaugural Committee and the Republican State Committee -- a lack of
cooperation which I believe hampered us from completing our investigation in
the timely manner so important to retaining public confidence in this
Commission and in the Commonwealth's Chief Executive.
•aul J.
Commissioner