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HomeMy WebLinkAbout494 SalvatoreHonorable Frank Salvatore Senate of Pennsylvania Commonwealth of Pennsylvania 14219 Barcalow Street Philadelphia, PA 19116 Re: 84 -133 -C STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ORDER OF THE COMMISSION June 20, 1986 Order No. 494 Dear Senator Salvatore: 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, as a member of the Pennsylvania House of Representatives, violated Section 3(a) of the State Ethics Act, 65 P.S. 403(a), which prohibits the use of public office or confidential information gained through that office by a public official or public employee when you distributed campaign literature and taxpayer - funded literature as part of your campaign for the Pennsylvania Senate. A. Findings: 1. You served as a member of the House of Representatives of the Commonwealt), of Pennsylvania from 1973 to January 1985 and, as such, are a "public official" subject to the Ethics Act. 2. You sought election to the Serrate of the Commonwealth of Pennsylvan running in the May, 1984 primary and the November, 1984 general election by a. You were elected and currently serve in the Fifth Senate District o;" Pennsylvania. 3. During March and April, 1984, a letter entitled "Salvatore for Senate" was distr-i buted door -to -door. Honorable Frank Salvatore June 20, 1936 Page 2 a. The "Salvatore for Senate" letter head contained the following: Salvatore for Senate Committee 316 Ruxmont Street, Philadelphia, PA 19116 Mort 0orl1ck /Co- Chairmen /George Costello John Eagan, Finance Chairman /Edith Kitchin, Treasurer It also had a phone number - 215- 464 -4480 on it. 4 . According to your attorney, taxpayer funded literature was distrihuted around July, 1984. a. "Your Guide to the State Sales Tax and Non - Taxable Items" contained the Hnrrse a Representatives seal, your district office and Harrishurg office addresses and phone numbers on it. h. "A Guide to Philadelphia Services" also contained your district office and Harrishurg addresses and phone numbers on it. 5. You also distributed a letter dealing with legislative action on the state lottery. a. This letter contained the House of Representatives letter head and your district and Harrisburg addresses and phone numbers. h. It did not appeal for political support, discuss political issues or opponents. 6. nn March 7, 1986, your Attorney, Richard H. Glanton, wrote to Edward M. Seladones, Executive Director of the State Ethics Commission, and stated the following: a. He was submitting information that he believed would cause a conclusion that the complaint was without merit and make an interview with you unnecessary. h, You distrihuted campaign material paid for hy your campaign committee to residents of the senatorial district for which you were a candidate. c. Yon did not use state personnel , equipment or funds in this effort. d. Section 3(a) of the Ethics Act does not restrict communications hetween voters and their elected officials unless the relationship is used for "personal financial gain restricted hy the Act itself ". e. That, the distrihution of taxpayer- funded literature is governed hy House rules which provide: Honorahle Frank Salvatore June 20, 1986 Page 3 "Such allowable expenses of members may be used for any legislative purpose or function, including hut not limited to the following: (3) Rent for legislative office space; purchase of office supplies; postage; telephone and answering services; printing services and rental only of office equipment; voucher and vendor's receipt, except for postage expense. No reimbursement or expenditure shall be made out of any appropriation account for any mass:_ mailing including a hulk -rate mailing made at the direction or on behalf of any member which is mailed or delivered to a postal facility within sixty (60) days immediately preceding any primary or election at which said member is a candidate for public office. Mass mailing shall mean a newsletter of similar mailing of more than fifty (50) pieces in which the content of the matter is substantially identical. Nothing in this rule shall apply to any mailing which is in direct response to inquiries or requests from persons to whom matter is mailed, which is addressed to colleagues in the General Assemhly or other governmental officials or which consists entirely of news releases to the communications media." (emphasis supplied). (1) That the taxpayer funded literature was "prepared by your legislative staff, deals with relevant legislative issues, does not appeal for political support, discuss campaign issues, nor refer to political opponents ". (2) That a mailing to "potential constituents in the legislator's (new) district, or more aptly stated, non- constituent at the time of the mailing does not automatically determine that the mailing is a non - official one ". (3) That most of the mailings were made in July, 1984 and months before the Novemher election. H. Discussion: Section 3(a) of the Ethics Act prohibit s the use of puhlic office for personal financial gain.. See 65 PeS. 403(a). A legislator may not use his office or, in this case, puhlic money which is to he 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 he Honorable Frank Salvatore June 20, 1986 Page 4 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 -or printing) 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. In the current situation, we have_ been called upon to review the distribution of certain-:-items as, follows: 1. letter entitled Salvatore for Senate 2. two Guides to Services 3. letter regarding the State Lottery With relation to the first item listed above, it is noted that while that material was specifically related to your re- election efforts, such material was paid for with private funds. No public funds, personnel or facilities were employed regarding the printing and distribution of that item. Similarly, the guides listed in item two above, while printed at public expense, do not - appear to have been used in relaton to the re- election activities. Members of the General Assembly are authorized, pursuant to the law, to print and distribute this type of material to their constituents. There is no evidence-that these items were used as part of your door -to -door campaign activities. Absent such evidence, we do not believe that there has been any violation in relation to the State Ethics Act. The final item to be reviewed is the letter regarding the State Lottery. This letter, while containing the House of Representatives letter head and your district office locations, did not appeal for any political support and did not reference to your campaign. Generally, i n reviewing similar situations, we have employed the folIowi ng criteria in analyzing whether a mailing or distribution is for non - legislative purposes: 1. What per -cent of the mailing can be said to be clod :rated 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 "franki ng" privilege had been abused. 2. What was the main content matter of the mailings' written ..porti.ons? Honorable Frank Salvatore June 20, 1986 Page 5 a. Did it include appeals for political support? b. Did it refer to what a member expects to do in the next 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 v. Helstoski, 492 F.2d 413 (3rd Cir. 1974). 3. How extensive was the mailing? Examine total copies and distribution. In Hoellen v. Annunzio, 468 F.2d 522 (7th Cir. 1972), cert. den. 93 S. Ct. 3001, 412 U.S. 953, a total mailing of 134,000 copies was sent; 100,000 to potential constituents and 34,000 to old constitutents (defendant was serving representative in 7th District, running for seat in 11th District). The Court found 34,000 copies were properly "franked" as official business but 100,000 were for the purpose of advancing candidacy and, therefore, not properly "franked." 4. When was mailing made? In Rising, supra, a massive state -wide mailing two weeks prior to election was sanctioned. In the instant situation, we believe that the "lottery letter" was a proper mailing under the above criteria. That letter informed constituents of recent legislative actions in relation to the lottery. It did not appeal for support or otherwise mention any election. I t did not set forth any future plans and was issued mainly as a result of requests for information. As such, we do not believe that there has been any violation of the State Ethics Act. Finally, we note that we have recently issued an advice in relation to similar activity which generally outlines the permissible scope of an official's actions in similar matters. In relation to election campaign activities, we have determined that: 1. Use of the Commonwealth seal; the House of Representatives letterhead, and official title is permitted. Honorable Frank Salvatore June 20, 1986 Page 6 2. All stationery containing the aforementioned items should set forth a disclaimer indicating that the stationery is not official Commonwealth stationery and has heen paid for with private funds. 3. An official may not use the address of the Commonwealth offices, legislative offices or legislative phone numbers as campaign contact points. 4. The purchase of the stationery in support of a campaign should not be made through the House of Representatives and an official may not take advantage of any special rates accorded to the House of Representatives by any printing company for the purchase of Commonwealth supplies. 5. An official may not use the House mails or postage for dissemination of this material. 6. Finally, the content of the letter should not indicate or leave the impression that the letter is an official governmental document or part of the legislative function. Fee, 86 -542. C. Conclusion: There was no violation of the State Ethics Act as there is no evidence that you used Commonwealth funds to print or distrihute re- election campaign materials. There was also no evidence that the distribution of items paid for with public funds was for campaign purposes. 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 he mad; 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 2.3R, 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 he fined not more than 51,000 or imprisoned for not more than one year or both, see 65 P.S. 409(e). Ry the Commission, G. Sieher Pancoast Chairman