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HomeMy WebLinkAbout02-597-CL GouldPhyllis Gould, Research Insurance Committee House of Representatives Commonwealth of Pennsylvania Room 139, Ryan Office Building Harrisburg, PA 17120 ADVICE OF COUNSEL October 30, 2002 02 -597 -C L Re: Conflict, Research Analyst; House of Representatives; General Assembly; Board Member; Nonprofit Corporation; Non - compensated; Clarification; Advice of Counsel, No. 02 -597. Dear Ms. Gould: This responds to your letter of October 2, 2002, by which you requested clarification of Gould, Advice of Counsel, No. 02 -597. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. 71 et seq., imposes any prohibition or restrictions upon a legislative research analyst from serving without compensation as a board member of a nonprofit corporation. Facts: You initially sought an advisory from the State Ethics Commission by letters dated July 29, 2002, and August 12, 2002. In response to your request, Gould, Advice 02- 597 was issued to you on September 12, 2002, which Advice is incorporated herein by reference. You now seek clarification regarding one particular conclusion in the said Advice. Specifically, the Advice stated, "Although Section 1103(a) of the Ethics Act, would not preclude your service without compensation as a member of the Agents Helping Agents, Inc. Board of Directors, subject to the restrictions, conditions and qualifications set forth above, it is a business with which you are associated under the Ethics Act. As such, you would have a conflict as a legislative research analyst in matters involving AHA, may not participate in such matters, and must observe the disclosure requirements of Section 1103(j) noted above." Gould, Advice 02 -597 at 4. As to the above, you ask whether the class /subclass exclusion to the definition of "conflict" or "conflict of interest" would apply. Discussion: As noted in Gould, Advice 02 -597, as a Legislative Research Analyst for Gould 02- 597 -CL October 30, 2002 Page 2 the Insurance Committee in the House of Representatives, you are a "public employee" subject to the provisions of the Ethics Act. In addressing your specific inquiry, you are advised that the class /subclass exclusion to the definition of "conflict" or "conflict of interest" would not apply in the instant case. This exclusion was recently addressed by the Commission in Kablack, Opinion 02 -003. In Kablack, supra, the Commission held that in order for this exclusion to apply, two criteria must be met: (1) the affected public official /public employee, immediate family member, or business with which the public official /public employee or immediate family member is associated must be a member of a class consisting of the general public or a true subclass consisting of more than one member; and (2) the public official /public employee, immediate family member, or business with which the public official /public employee or immediate family member is associated must be affected "to the same degree' (in no way differently) than the other members of the class /subclass. Id. As to matters that would come before you in your public capacity as a Legislative Research Analyst involving Agents Helping Agents, Inc. ( "AHA "), a business with which you, as a Board Member, would be associated, the class /subclass exclusion would clearly be inapplicable in that AHA would not be part of a true subclass consisting of more than one nonprofit corporation formed to assist insurance agents and brokers to address and overcome their alcohol or substance abuse, but would only be one nonprofit corporation with a unique corporate mission or ur ose. Given the failure to meet the first criteria, the second criteria concerning being "affected] to the same degree" need not be addressed. This Advice is limited to addressing the applicability of Sections 1103(a) and 1103(f) of the Ethics Act. It is expressly assumed that there has been no use of authority of office for a private pecuniary benefit as prohibited by Section 1103(a) of the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /employee and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. 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 interpretation of the Ethics Act. Conclusion: As a Legislative Research Analyst for the Insurance Committee for House of Representatives, you are a "public employee" subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. As to the request for clarification on whether the class /subclass exclusion to the definition of "conflict" or "conflict of interest" would apply in instances where matters would come before you in your public capacity as a Legislative Research Analyst involving Agents Helping Agents, Inc. ( "AHA "), a business with which you, as a Board Member, would be associated, the class /subclass exclusion would clearly be inapplicable in that AHA would not be part of a true subclass consisting of more than one nonprofit corporation formed to assist insurance agents and brokers to address and overcome their alcohol or substance abuse, but would only be one nonprofit corporation with a unique corporate mission or purpose. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), this 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. Gould 02- 597 -CL October 30, 2002 Page 3 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). The 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