HomeMy WebLinkAbout02-570 ConfidentialADVICE OF COUNSEL
June 18, 2002
Re: Conflict; Public Official /Public Employee; Member; General Assembly; C; Private
Employment or Business; Consulting Services; Law Firm; Out -of State Issues;
Issues Arising in Pennsylvania.
This responds to your letter of May 13, 2002, by which you requested a
confidential advisory from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. §1101 et seq., would present any prohibition or restrictions upon a
Pennsylvania State Legislator with regard to contracting with an out -of -state law firm to
provide consulting services related to local, county, or regional issues of other state(s)
or, occasionally, Pennsylvania communities, when such services would not relate to or
involve any information pertaining to the Pennsylvania General Assembly, its legislation,
or any non - public information related thereto or discovered as a result of the Member's
holding public office.
Facts: As A for the B of the Pennsylvania C, you have requested a confidential
advisory on behalf of an unidentified Member of the Pennsylvania General Assembly
( "Legislator ") regarding a proposed consulting contract. You have submitted facts which
may be fairly summarized as follows.
An out -of -state law firm ( "Firm ") is seeking to enter into a consulting contract with
the Legislator. The term of the contract would be undetermined. The Firm would retain
the Legislator for a fixed monthly amount of compensation.
Per the contract, the Legislator would advise the Firm on local, political and
economic development issues, personalities, strategies and similar matters to enhance
the successful promotion of the Firm's clients' interests in State D and other non -
Pennsylvania communities. In addition to advising the Firm, the Legislator might also
conduct direct communications with city, county and business officials in State D
regarding the Firm's clients' business development initiatives.
Furthermore, if permitted by the Ethics Act, the Legislator might provide similar
consulting services as to the Firm's clients' interests in Pennsylvania communities.
02 -570
Confidential Advice 02 -570
June 18, 2002
Page 2
However, you state that such would rarely occur and could be entirely precluded if
determined by this Advice to be contrary to the Ethics Act.
You state that the services provided by the Legislator would not relate to or
involve any information pertaining to the Pennsylvania General Assembly, its legislation,
or any non - public information related thereto or discovered as a result of the Member's
holding public office.
Finally, you state that in rendering services under the contract, the Legislator
would clearly indicate that he /she was making contact and functioning as an agent of
the Firm and /or its client(s) and not as a Member of the Pennsylvania General
Assembly.
Discussion: It is initially noted that pursuant to Sections 1107(10) and (11) of
the Ethics Act, 65 Pa.C.S. §1107(10), (11), advisories are issued tote requestor
based upon the facts which the requestor has submitted. In issuing the advisory based
upon the facts which the requestor has submitted, the Commission does not engage in
an independent investigation of the facts, nor does it speculate as to facts which have
not been submitted. It is the burden of the requestor to truthfully disclose all of the
material facts relevant to the inquiry. 65 Pa.C.S. §§1107(10), (11). An advisory only
affords a defense to the extent the requestor has truthfully disclosed all of the material
facts.
As a Member of the Pennsylvania General Assembly, specifically the C, the
Legislator on whose behalf you have inquired is a public official subject to the provisions
of the Ethics Act.
Section 1103(a) of the Ethics Act provides:
§1103. Restricted activities
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
65 Pa.C.S. §1103(a).
The following terms are defined in the Ethics Act as follows:
§1102. Definitions
"Conflict" or "conflict of interest." Use by a public
official or public employee of the authority of his office or
employment or any confidential information received through
his holding public office or employment for the private
pecuniary benefit of himself, a member of his immediate
family or a business with which he or a member of his
immediate family is associated. The term does not include
an action having a de minimis economic impact or which
affects to the same degree a class consisting of the general
public or a subclass consisting of an industry, occupation or
other group which includes the public official or public
employee, a member of his immediate family or a business
with which he or a member of his immediate family is
associated.
"Authority of office or employment." The actual
power provided by law, the exercise of which is necessary to
Confidential Advice 02 -570
June 18, 2002
Page 3
the performance of duties and responsibilities unique to a
particular public office or position of public employment.
"Business." Any corporation, partnership, sole
proprietorship, firm, enterprise, franchise, association,
organization, self - employed individual, holding company, stock company, receivership, trust or any legal entity
organized for profit.
"Business with which he is associated." Any
business in which the person or a member of the person's
immediate family is a director, officer, owner, employee or
has a financial interest.
65 Pa.C.S. §1102.
Section 1103(j) of the Ethics Act provides as follows:
§1103. Restricted activities
(j) Voting conflict. - -Where voting conflicts are not
otherwise addressed by the Constitution of Pennsylvania or
by any law, rule, regulation, order or ordinance, the following
procedure shall be employed. Any public official or public
employee who in the discharge of his official duties would be
required to vote on a matter that would result in a conflict of
interest shall abstain from voting and, prior to the vote being
taken, publicly announce and disclose the nature of his
interest as a public record in a written memorandum filed
with the person responsible for recording the minutes of the
meeting at which the vote is taken, provided that whenever a
governing body would be unable to take any action on a
matter before it because the number of members of the body
required to abstain from voting under the provisions of this
section makes the majority or other legally required vote of
approval unattainable, then such members shall be
permitted to vote if disclosures are made as otherwise
provided herein. In the case of a three - member governing
body of a political subdivision, where one member has
abstained from voting as a result of a conflict of interest and
the remaining two members of the governing body have cast
opposing votes, the member who has abstained shall be
permitted to vote to break the tie vote if disclosure is made
as otherwise provided herein.
65 Pa.C.S. §1103(j).
You are advised that Section 1103(a) of the Ethics Act does not per se prohibit
public officials /public employees from having outside business activities or employment.
Flowever, subject to certain exceptions delineated in the definition of "conflict" or
"conflict of interest" above, Section 1103(a) of the Ethics Act ordinarily applies to
prohibit the public official /public employee from using the authority of his public
position —or confidential information obtained by being in that position —for the
advancement of his own private pecuniary benefit or that of a business with which he is
associated. Ordinarily, a public official /public employee with a conflict under the Ethics
Act is required to abstain fully and to fully satisfy the disclosure requirements of Section
1103(j) of the Ethics Act.
Confidential Advice 02 -570
June 18, 2002
Page 4
However, in Co�rri an, Opinion 87 -001, the Commission addressed the question
of whether the Ethics Act would prohibit a member of the General Assembly from voting
in relation to a measure or bill pending before the Pennsylvania State Senate or the
Pennsylvania House of Representatives when such measure or bill would affect the
legislator's private interests. The Commission considered the following provisions of the
Constitution of Pennsylvania:
Privileges of Members
Section 15. The members of the General Assembly shall in
all cases, except treason, felony, violation of their oath of
office, and breach of surety of the peace, be privileged from
arrest during their attendance at the sessions of their
respective Houses and in going to and returning from the
same; and for any speech or debate in either House they
shall not be questioned in any other place.
Constitution of Pennsylvania, Article II, Section 15.
Vote Denied Members with Personal Interest
Section 13. A member who has a personal or private
interest in any measure or bill proposed or pending before
the General Assembly shall disclose the fact to the House
of which he is a member, and shall not vote thereon.
Constitution of Pennsylvania, Article III, Section 13.
In reviewing the above constitutional provisions and pertinent case law, the
Commission held:
The activities of a member of the General Assembly
insofar as such relate to legislative actions, defined as the
introduction, consideration, debating, voting, enactment,
adoption or approval of legislation, are constitutionally
controlled. Such legislative actions are therefore exempt
from the purview of the State Ethics Act and the State
Ethics Commission.... the application of the State Ethics
Act to non - legislative activities [is] in no way affected by
this opinion.
Corrigan, Opinion 97 -001 at 4.
In applying the above authorities to the facts which you have submitted, you are
advised that Section 1103(a) of the Ethics Act would not prohibit the Legislator on
whose behalf you have inquired from entering into a consulting contract with the Firm to
help promote the interests of the Firm's clients in State D and other non - Pennsylvania
communities, or to further the Firm's clients' interests in Pennsylvania communities,
conditioned upon the assumptions that: (1) as indicated, the Legislator would not use
any confidential information received through holding public office for a prohibited
private pecuniary benefit; and (2) the Legislator would not engage in actions other than
"legislative actions" that would constitute the use of the authority of his /her public office
as a legislator for the private pecuniary benefit of the Firm and /or its client(s).
The propriety of the proposed conduct has only been addressed under the Ethics
Act; the applicability of any other statute, code, ordinance, regulation or other code of
conduct other than the Ethics Act has not been considered in that they do not involve an
Confidential Advice 02 -570
June 18, 2002
Page 5
interpretation of the Ethics Act. Specifically not addressed herein is the applicability of
the Legislative Code of Conduct.
Conclusion: As a Member of the Pennsylvania General Assembly, specifically
the C, the Legislator on whose behalf you have inquired is a public official subject to the
i rovisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S.
1101 et seq. The portion of a legislator's activities constituting "legislative actions,"
defined as the introduction, consideration, debating, voting, enactment, adoption or
approval of legislation, is not subject to the provisions of the Ethics Act or the jurisdiction
of the State Ethics Commission. Under the submitted facts, Section 1103(a) of the
Ethics Act would not prohibit the Legislator on whose behalf ( ou have inquired from
entering into a consulting contract with an out -of -state law firm ("Firm ") to help promote
the interests of the Firm s clients in State D and other non - Pennsylvania communities,
or to further the Firm's clients' interests in Pennsylvania communities, conditioned upon
the assumptions that: (1) as indicated, the Legislator would not use any confidential
information received through holding public office for a prohibited private pecuniary
benefit; and (2) the Legislator would not engage in actions other than "legislative
actions" that would constitute the use of the authority of his /her public office as a
legislator for the private pecuniary benefit of the Firm and /or its client(s).
Pursuant to Section 1107(11), an Advice is a complete defense in any
enforcement proceeding initiated by the Commission, and evidence of good faith
conduct in any other civil or criminal proceeding, provided the requestor has disclosed
truthfully all the material facts and committed the acts complained of in reliance on the
Advice given.
This letter is a public record and will be made available as such.
Finally, if you disagree with this Advice or if you have any
reason to challenge same, you may appeal the Advice to the full
Commission. A personal appearance before the Commission will be
scheduled and a formal Opinion will be issued by the Commission.
Any such appeal must be in writing and must be actually
received at the Commission within thirty (30) days of the date of this
Advice pursuant to 51 Pa. Code §13.2(h ). TThe appeal may be received
at the Commission by hand delivery, United States mail, delivery
service, or by FAX transmission (717 -787- 0806). Failure to file such an
appeal at the Commission within thirty (30) days may result in the
dismissal of the appeal.
Sincerely,
Vincent J. Dopko
Chief Counsel