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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