HomeMy WebLinkAbout486 FischerRepresentative Roger R. Fischer
Overlook Drive
Washington, PA 15301
Re: 85 -18 -C
Dear Representative Fischer:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
ORDER OF THE COMMISSION
May 2, 1986
Order No. 486
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, a State Representative, violated Section 3(a) of
the Ethics Act which prohibits a public official from using his office or
confidential information gained through that office to "obtain financial gain
other than compensation allowed by law for himself, a member of his immediate
family or a business with which he is associated" by using state funds to mail
numerous birthday greetings, congratulatory messages, etc., to constituents
and non- constituents.
A. Findings:
1. You have served in the Pennsylvania House of Representatives since 1966
and, as an elected member of the House, are subject to the requirements of the
State Ethics Act.
2. Since you took office you have made it a practice to sod congratulatory
notes to various persons.
a. The notes do not contain requests for political funds u:• su1 pert but
are sent for birthdays and anniversaries.
h. You stated that you send these notes to individuals to constituents
and non - constituents hut you restrict the mailings to Southwestern,
Pennsylvania.
c. You do not keep records on the number of congratulatory nc,tes you
send.
Representative Roger R. Fischer
Page 2
May 2, 1986
d. You also stated that you believed it is important for a legislator to
recognize people and to let them know you are available.
e. You admit that state funds are used for these mailings. They are
paid out of expense accounts that are available to you as a member
of the House of Representatives.
f. You were a candidate for United States Congress in 1976 in the
di strict generally covering the area where these mailings occurred.
3. You believe these mailings are legal because they are not political in
n ature.
4. On August 15, 1984, Representative H. William DeWeese asked the House
Ethics Committee to investigate these mailing practices. There is no record
of any committee action or decision.
5. Your postage expenses for 1983, 1984 and January through September 1985
were:
a. 1983 - $1,102.56
b. 1984 - $2,517.36
c. 1985 - $2,973.83
6. The cost of mailing congratulatory notes cannot be distinguished from
other postage charges.
B. Discussion: Section 3(a) of the Ethics Act prohibits the use of public
office for personal financial gain. See 65 P.S. 403(a). A legislator may not
use his office -- or in this case public money (postage) -- which is to be
expended only for "legislative" purposes to secure or primarily advance his
own personal goal or re- election. A legislator, however, when running for
re- election cannot be restrained because of Section 3(a) of the Ethics Act
from performing his official or legislative business during the campaign. The
question can be reduced to simply whether or not the activity (mailing) in
question constitutes "official business" of the member. If not, then the
activity amounts to using the public purse to finance purely personal efforts
and violates the Ethics Act. See, McClatchy, No. 130; Rappaport, No. 129.
The difficult portion of the question relates to drawi ng a rational line
around the term "official business." The Federal "franking" statute relating
to legislative mailing privileges is of some assistance in addressing this
question. See, 39 U.S.C. 3210. Initially, we note that we agree with those
cases under the federal law which hold that the question of whether an item is
"official business" or not does not turn on the character of the addressee as
a constituent or a non - constituent of the legislator making the mailing. See,
Representative Roger R. Fischer
Page 3
May 2, 1986
Schaiffo v. Helstoski, 492 F.2d 413 (3rd Cir. 1974). A mailing to
non - constituents does not automatically evoke a conclusion that the mailing is
not "official business" and, therefore, improperly "franked." See, also Bowie
v. Williams, 351 F. Supp. 628 (D.C. Pa. 1972). Thus, a mailing to potential
constituents in the legislator's "new" district i.e., non - constituents at the
time of mailing, 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 ", thus, properly
payable from legislative funds. Again, we find the analysis of several
federal courts instructive. Some courts have, i n their analysis of similar
situations, asked the following questions in deciding whether or not a mailing
constitutes "official business ":
1. What per -cent of the mailing can be said to be dedicated to "other
matters which strongly lends itself to the suspicion that it is
promotive of getting votes for the sender? In Rising v. Brown, 313
F. Supp. 824 (D. C. Cal. 1970) a 50% rate of such material was
involved. It is also notable that in Rising, the mailing was
prepared by the same Public Relations firm which was managing
the legislator's election campaign. In Rising, the court concluded
the "franking" privilege had been abused.
2. What was the main content matter of the mailing's written portions?
a. Did it include appeals for political support?
b. Did it refer to what a member expects to do in the nexi .
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. Can mailing be viewed as one designed primarily to advance
electoral prospects? See Schaiffo, supra.
3. How extensive was the mailing? Exami ne total copies and
distribution. In Hoellen v. Annunzio, 468 F.2d 522 (7th Cir. 19/2).
cert. den. 93 S. Ct. 3U01, 412 U.S. 953, a total mailing of 134,0J0
copies was sent 100,000 to potential constituents and 34,000 to "old"
constituents (defendant was servi ng representative i n 7th Di strict,
running for seat in 11th District). The court found 34,000 copies
were properly "franked" as official business but 100,000 wev for the
purpose of advancing candidacy not properly "franked,"
Representative Roger R. Fischer
Page 4
May 2, 19R6
4. When was mailing made? In Rising, supra, a massive state -wide
mailing two weeks prior to election was sanctioned.
As previously noted, the Federal Franking Statute has been used by this
Commission, in the past, as guidance in matters such as the one now under
consideration. That statute interestingly provides, in part, that:
"Mail matter which is frankable specifically includes, but is not limited
to:
(f) Mail matter expressing congratulations to a person who has achieved
some public distinction; 39 U.S.C.A. §3210 (3)(f).
Of course, we are required 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.
If mailed matter, even if of the type permitted, is for a purpose other
than official business, then such would not be in accord with the State Ethics
Act.
In the instant situation, the mailings in question were those of a
congratulatory nature. They were forwarded to both constituents and
non - constituents. There is no evidence that there was any mass mailing of
these items.
Also we note, that while you were a candidate for United States Congress
in the area where these items were mailed in 1976, you have not since that
time been a candidate and there is no evidence that you intend to become a
candidate in the near future.
While it is no doubt arguable that there is no legislative purpose to
these mailings to non - constituents; we do not believe that the evidence
clearly establishes a violation of the State Ethics Act in this matter. We
believe that it is important to note that our decision herein is based solely
upon the available evidence. We do not and cannot address the issue of
whether such mailings are ultimately in the best interest of the public and
whether the expenditure of public funds for such purpose is prudent.
We note that we have, in previous decisions of this nature, reaffirmed
our decision in Cessar, 82 -002, and have advised that officials who engage in
activities considered questionable by the public, should be more aware of the
general public perceptions that are occasioned by their activities.
C. Conclusion: We do not believe that the evidence clearly establishes a
violation of the State Ethics Act regarding your mailing of congratulatory
notes through the Commonwealth system. We do not, herein, address the issue
of whether such mailings are prudent, and we also advise that you should be
constantly aware of public perceptions.
Representative Roger R. Fischer
Page 5
May 2, 1986
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
rel easi ng, 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,
G. Sieber Pancoast
Chai rman