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HomeMy WebLinkAbout89-014-R2 HafnerStephen C. MacNett General Counsel to the Senate Majority Caucus Room 362 Main Capitol Bldg. Harrisburg, PA 17120 Clancy M. Myers, Jr. Parliamentarian to the House of Representatives Room 139 Main Capitol Bldg. Harrisburg, PA 17120 Dear Sirs: I. Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Helena G. Hughes, Chair Robert W. Brown, Vice Chair W. Thomas Andrews G. Sieber Pancoast Dennis C. Harrington James M. Howley Daneen E. Reese DATE DECIDED: June 22, 1990 DATE MAILED: July 9. 1990 Re: Reconsideration, Cappabianca, Opinion 89- 014 -R, Standing. This responds to your request for reconsideration of the State Ethics Commission Opinion 89- 014 -R, which was decided by the Commission on October 26, 1989 and issued on December 19, 1989. Whether this Commission should grant reconsideration of Cappabianca, Opinion 89- 014 -R. II. Factual Basis for Determination: 89 - 014 - R2 C.J. Hafner,.II Chief Counsel to the Senate Democratic Floor Leader Room 535 Main Capitol Bldg. Harrisburg, PA 17120 Joseph W. Murphy Counsel to House Republican Caucus B -6 Main Capitol Bldg. Harrisburg, PA 17120 The instant matter arose from Representative Italo S. Cappabianca's request by letter of June 22, 1989, for an Opinion of this Commission. After the issue was considered in a public meeting on July 28, 1989, Cappabianca, Opinion 89 -014, was issued wherein it was determined that a member of the General Assembly may charge to his legislative account the rent at the prevailing local rate for a district office in a building which he owns and that he may purchase Page 2 airline tickets for business travel from a travel agency of which he is president, thereby generating a 10% commission for his agency' The Chair timely requested reconsideration of Opinion 89 -014 by letter of August 30, 1989 and such reconsideration was granted at a public meeting of October 26, 1989. Following the grant of reconsideration, this Commission reversed the decision of Opinion 89 -014 and concluded that it was impermissible under Section 3(a) of the Ethics Law for a member of the General Assembly to charge the rent of his district office in a building he owns to his legislative district account and for him to purchase airline tickets from a travel agency of which he is president, whereby a 10% commission to his agency would result. On October 30, 1989, this Commission received your letter requesting reconsideration of that latter decision with respect to the issue of a member charging his legislative account with the rental of a district office in 'a building which he owns. The Commission's decision was finalized in written Opinion 89 -014 -R issued on December 19, 1989. Neither Representative Cappabianca or any other representative or senator has requested reconsideration but you indicate that you are seeking reconsideration on behalf of the membership of your respective caucus and at the direction of your respective leadership. III. Discussion: We have been asked to reconsider our reconsideration in Cappabianca, 89 -014 -R by the General Counsel to the Senate Majority Caucus, Chief Counsel to the Senate Democratic Floor Leader, Parliamentarian to the House of Representatives, and Counsel to House Republican Caucus. First, it must be recognized that this Commission may exercise broad discretion in determining whether to grant or deny reconsideration, as long as such discretion is exercised in a sound manner. Krane, Opinion 84- 001 -R; PSATS v. State Ethics Commission, 92 Pa. Commw. Ct. 544, 499 A.2d 735 (1985). The general law to be applied to this question is as follows: Regulations of the State Ethics Commission: Section 2.15 Reconsideration of opinions. Any person may request within 15 days of service of the opinion that the Commission reconsider its opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. 51 Pa. Code 2.15. The Ethics Act: Page 3 Section 7. Powers and duties of the commission. In addition to other powers and duties prescribed by law, the commission shall: (10) Issue to any person, upon such person's request, or to the appointing authority or employer of that person upon the request of such appointing authority or employer, an opinion with respect to such person's duties under this act. The commission shall within 14 days, either issue the opinion or advise the person who made the request whether an opinion will be issued. No person who acts in good faith on an opinion issued to him by the commission shall be subject to criminal or civil penalties for so acting, provided that the material facts are as stated in the opinion request. The commission's opinions shall be public records and may from time to time be published. The persons requesting the opinion may, however, require that the opinion shall contain such deletions and changes as shall be necessary to protect the identity of the persons involved. You have timely requested reconsideration on behalf of your respective caucus and we believe that you have standing to proceed with your request for reconsideration. William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975). In this regard, you have indicated that you represent your respective caucus and leadership who do have a direct and substantial interest in this matter. We must now address the question as to whether you meet the criteria for this Commission to exercise its discretion in either granting or denying reconsideration. Reconsideration may be granted if either new evidence or testimony has developed, Douglas v. Workmen's Compensation Appeal Board, 32 Pa. Commw. Ct. 156, 377 A.2d 1300 (1977), or if there has been a material error of law. Coyle, Opinion 83 -002. You maintain in your letter of request that a material error of law has been made by this Commission. Specifically, you argue aS follows: 1. A landlord /member is part of the subclass of landlords under Page 4 a plain reading of the Ethics Law and is affected to the same degree as other members of that subclass. 2. It is beyond the Commission's jurisdiction to interpret language not encompassed within the parameters of the current version of the Ethics Law or its earlier version. 3. The original Ethics Law was reenacted, not repealed, and therefore, precedent such as Romanelli, Opinion 79 -006, and its progeny cannot be ignored. 4. Since the member could receive the rental value of the space on the open market, it cannot be held that such provides a pecuniary benefit obtained through use of authority of office. The first, third and fourth arguments which you have raised fail to establish an issue which the Commission has not already considered and dispelled in the previous Cappabianca reconsideration, 89- 014 -R. As to your first argument, such was addressed in the Cappabianca reconsideration wherein we concluded that "these members are not a subclass but are rather several individual members who have legislative district offices in their own buildings and who charge their legislative account for rent." With respect to the third argument you raise, we set forth in Opinion 89- 014 -R three clear reasons why Romanelli, Opinion 79 -006, is distinguishable: "Initially, Romanelli was decided under Act 170 of 1978, the restricted activity sections of . which is different (emphasis added) from those contained in Act 9 of 1989. Additionally, we only considered the applicability of the contracting provision of Act 170 in Romanelli [sic] but not the issue of whether the activity was restricted by Section 3(a). Finally, the definition of "contract" under the current law has an exclusion concerning expenses between a public official and the State or political subdivision." As to Kelly, Advice 82 -535, which was an Advice of Counsel' and not a full Commission Opinion, the holding in the cited advice merely followed Romanelli, supra. Although you are correct that Act 9 of 1989 served to reenact 170 of 1978, the language of 170 was amended with a natural consequence being a different application under the current language of Section 3(a). / Regarding your fourth argument, we have already addressed the issue of what constitutes a private pecuniary benefit. It was determined in the Cappabianca reconsideration that "the rental Page 5 of...[Representative Cappabianca's] own building for a district office...results in a private pecuniary benefit because these allowances are in whole or part inuring to...[his] private finanpial benefit." It is simply irrelevant that the space could be rented on the open market. The important consideration is that the allowance granted members for rental of a district office is returning directly to one member in the form of a pecuniary benefit. You have failed to set forth any error of law in Cappabianca, Opinion 89- 014 -R. Your second argument that the Commission was acting beyond the scope of its jurisdiction fails to raise a material error of law. It is necessary upon occasion for the Commission to review the provisions of other acts which necessarily impact upon the Ethics Law. McCutcheon v. State Ethics Commission, 77 Pa. Cmwlth. Ct. 529, 466 A.2d 283 (1983). You however argue that our decision is contrary to Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 507 A.2d 323 and Kennedy v. Commonwealth, 119 Pa. Cmwlth. Ct. 24, 546 A.2d 733. Those cases are limited to a narrow consideration of the differentiation between salary and unvouchered expense accounts. Clearly, neither case is on point nor necessary to our determination that the activity constitutes a use of authority of office to obtain a private pecuniary benefit under the Ethics Law. Finally, your reference to Blackwell et. al. v. State Ethics Commission, __ Pa. _, 567 A.2d 63 (1989) regarding commentary in a footnote as to Section 3(a) of Act 170 of 1978 is unavailing as to our interpreyation of Section 3(a) which has been amended by Act 9 of 1989. IV. Conclusion: The request for reconsideration of Cappabianca, Opinion 89 -014 -R is denied. Pursuant to Section 7(10), the person who acts in good faith on this opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. such. This letter is a public record and will be made available as By t - Commission, Helena G. Hughes, Chair Commissioners W. Thomas Andrews, Dennis C. Harrington and Daneen/E. Reese concur in the unanimous decision that the parties have standing but dissent as to the denial of reconsideration.