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HomeMy WebLinkAbout22-003 Corey-Mann PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 OPINION OF THE COMMISSION Before: Nicholas A. Colafella, Chair Mark R. Corrigan, Vice Chair Roger Nick Melanie DePalma Michael A. Schwartz Shelley Y. Simms Rhonda Hill Wilson DATE DECIDED: 3/02/22 DATE MAILED: 3/02/22 22-003 Rodney A. Corey, Esquire James G. Mann, Esquire Chief Counsel Senior Deputy Chief Counsel House Republican Caucus House Republican Caucus Pennsylvania House of Representatives Pennsylvania House of Representatives Suite B-6 Main Capitol Suite B-6 Main Capitol P.O. Box 202228 P.O. Box 202228 Harrisburg, PA 17120-2228 Harrisburg, PA 17120-2228 Dear Counsel: This responds to your correspondence of February 3, 2022, by which you requested an advisory opinion from this Commission. I. ISSUE: Whether the Public Official and 1101 et seq.from using public funds to pay expenses for the following: Corey/Mann, 22-003 March 2, 2022 Page 2 (1) Postage, printing, the transmission of electronic mail and robotic telephone calls for otherwise permissible mass districts in which a State Representative would reside as determined by the final Reapportionment Plan of the Legislative Reapportionment Commission for the House of Representatives affirmed by the Pennsylvania Supreme Court or otherwise having the force of law; and (2) The conduct of town halls, fairs and other types of legislative events in the legislative districts? II. FACTUAL BASIS FOR DETERMINATION: In your respective capacities as Chief Counsel and Senior Deputy Chief Counsel for the Republican Caucus of the , you request an advisory opinion from this Commission on behalf of the State Representatives (hereinafter referred identified below: Hon. Michael Armamnt Hon. Mark Gillen Hon. Ryan Mackenzie Hon. Kerry Benninghoff Hon. Keith Gillespie Hon. Abby Major Hon. Aaron Bernstine Hon. Barbara Gleim Hon. Zach Mako Hon. Karen Boback Hon. Jim Gregory Hon. David Maloney Hon. Tim Bonner Hon. Keith Greiner Hon. Jim Marshall Hon. Stephanie Borowicz Hon. Seth Grove Hon. Kurt Masser Hon. Bob Brooks Hon. Joe Hamm Hon. Tom Mehaffie Hon. Rosemary Brown Hon. Doyle Heffley Hon. Steven Mentzer Hon. Martin Causer Hon. Sue Helm Hon. Rob Mercuri Hon. Bud Cook Hon. Tim Hennessey Hon. Daryl Metcalfe Hon. Jim Cox Hon. John Hershey Hon. Carl Metzgar Hon. Lynda Culver Hon. Dave Hickernell Hon. Natalie Mihalek Hon. Bryan Cutler Hon. Rich Irvin Hon. David Millard Hon. Eric Davanzo Hon. Lee James Hon. Brett Miller Hon. Gary Day Hon. Mike Jones Hon. Lori Mizgorski Hon. Sheryl Delozier Hon. Barry Jozuriak Hon. Dan Moul Hon. Carrie DelRosso Hon. Joshua Kail Hon. Marci Mustello Hon. Russ Diamond Hon. Aaron Kaufer Hon. Eric Nelson Hon. Matt Dowling Hon. Rob Kauffinan Hon. Donna Oberlander Hon. George Dunbar Hon. Dawn Keefer Hon. Tim O'Neal Hon. Torren Ecker Hon. Joe Kerwin Hon. Jason Ortitay Hon. Joe Emrick Hon. Kate Klunk Hon. Clint Owlett Hon. Frank Farry Hon. Jerry Knowles Hon. Michael Peifer Hon. Mindy Fee Hon. Shelby Labs Hon. Tracy Pennycuick Hon. Ann Flood Hon. John Lawrence Hon. Tina Pickett Hon. Jonathan Fitz Hon. Andrew Lewis Hon. Todd Polinchock Hon. Valerie Gaydos Hon. Milou Mackenzie Hon. Mike Puskaric Corey/Mann, 22-003 March 2, 2022 Page 3 Hon. Chris Quinn Hon. Paul Schemel Hon. K.C. Tomlinson Hon. Jack Rader Hon. Lou Schmitt Hon. Jesse Topper Hon. Kathy Rapp Hon. Meghan Schroeder Hon. Tim Twardzik Hon. Jim Rigby Hon. Jason Silvis Hon. Ryan Warner Hon. Brad Roae Hon. Brian Smith Hon. Parke Wentling Hon. Leslie Rossi Hon. Curt Sonney Hon. Jeff Wheeland Hon. Greg Rothman Hon. Craig Staats Hon. Martina White Hon. David Rowe Hon. Perry Stambaugh Hon. Craig Williams Hon. Frank Ryan Hon. Todd Stephens Hon. Dave Zimmerman Hon. Tommy Sankey Hon. Jim Struzzi Hon. Stan Saylor Hon. Wendi Thomas The facts submitted in support of the request for an advisory opinion are summarized as follows: House Rules - Expense Account Guidelines Handbook The General Operating Rules of the House of Representatives permit House Members to use public funds for postage and printing services, among other purposes, so long as the funds are used for any legislative purpose or function. House Rule 14. The House Expense Account Guidelines, as promulgated and amended as of February 11, 2014, outline appropriate expenditures from a House Members accountable expenses, including printing services, telephone and answering services, postage, mailing services and advertisements listing district office information. All of these expenditures, however, are subject to disbursement, documentation and reporting under the provisions of House Rule 14. A Handbook for Pennsylvania House Members, 2021-2022 Session (Handbook) is published by the Offices of the Chief Clerk and Comptroller. Section 5.2 of the Handbook, entitled Guidelines for Fairs and Other Legislative Events, states: l. Legislative Purpose If legislative funds or resources are used, there must be a clear legislative purpose for holding or participating in the event. Legislative funds and resources cannot be used to just sponsor an outside organizations event. It must be a legislative event, although it may include outside cosponsors. Also, merely holding a community fun day without the focus of the event being on providing information on legislative and state programs is not an appropriate legislative expense. Whenever possible the legislative purpose should be communicated on the event advertisement. If the legislative purpose is not clearly communicated on the event advertisement, additional information stating the legislative purpose must accompany the request for reimbursement. Corey/Mann, 22-003 March 2, 2022 Page 4 Handbook, p.36 (emphasis in original). The Handbook further outlines non-reimbursable expenses, e.g., entertainment, balloons, prizes, gifts, games, etc. and imposes restrictions on tablecloths or banners at events or fairs. Id. at 36-37. Section 7 of the Handbook, entitled Frequently Discussed Topics, further provides: Events and Fairs: The event must support a legislative purpose for associated expenses to be reimbursed. It is always wise to contact the Comptrollers Office beforehand for guidance on what items will be reimbursed. Even if the event itself does have a legislative purpose, certain items are not reimbursable. Examples of such non- reimbursable items include, but are not limited to: parade supplies, entertainment, balloons, other decorations, clothing (either given away or worn by staff), hired help, games, crayons, flu shots, popcorn machines, trinkets, etc. Handbook, p.39-40 (emphasis in original). Also relevant are those provisions of the Ethical and Professional Conduct Rules of the House of Representatives which concern mass communication. The definition of mass communication under House Rule lE is as follows: Mass communication. The term shall include, but not be limited to, the following if they are paid for with House funds: (l) Any newsletter or similar mailing of more than 50 pieces a day in which the content of the matter is substantially identical. (2) Any electronic mail transmission to more than 50 addresses per day in which the content of the matter is substantially identical. (3) Any public service announcement via radio or television broadcast that depicts the name, voice or image of a Member. (4) Any telemarketing activities or robocalls on behalf of a Member, except for limited surveys to determine public opinion on various issues that do not use the name, voice or image of a Member. House Rule 2E(2), which imposes certain temporal limits on mass communication, provides: (2) No mass communication shall be made at the direction or on behalf of any Member which is delivered to a postal facility or otherwise distributed during a restricted period. Corey/Mann, 22-003 March 2, 2022 Page 5 Nothing in this subsection shall apply to any mass communication: (a) in response to inquiries or affirmative requests from persons to whom the matter is communicated, (b) sent to colleagues in the General Assembly or other government officials, or (c) which consists entirely of news releases to the communications media. Finally, the restricted period is defined by House Rule lE as follows: Restricted period. The 60-day period immediately preceding: (l) a primary or general election in an even-numbered year; or (2) an election at which the Member is a candidate. As a result, in 2022, mass communication, including bulk newsletters or e-mails, radio or television PSAs, and telemarketing/robocalls, are only permitted outside the 60-day period immediately preceding the primary or general election regardless of whether a House Member is on the ballot unless the specific communication falls within an exception (e.g., news releases to the communications media). Communications with Residents and Nonresidents House Members communicate and interact with both residents and nonresidents of their existing legislative districts to inform them of the availability of state programs, upcoming meetings and forums, and the services provided by that House Members District Office staff. Whether an individual is a resident of a particular Legislative District depends upon where the person resides at the time of the communication or other interaction. Although this communication/interaction is often with residents of the Legislative District, it is not unusual for House Members to communicate with, and provide legislative services to, residents of other legislative districts. This may be for a variety of reasons, including the following: residents do not always know the identity of their representative in the General Assembly, residents homes may be closer to another House Member's District Office, or residents may express an interest in a bill or legislative initiative championed by another House Member. As explained by Representative Kerry Benninghoff, House Majority Leader, at the August 3, 2021 afternoon hearing of the Legislative Reapportionment Commission, when discussing changes in legislative districts over the ten-year period between reapportionment plans: \[T\]he legislator continues to serve who comes in to see them. So Ive never been one who says yes or no to serving somebody regarding some squiggly line. You come in, you need help, we help you out Corey/Mann, 22-003 March 2, 2022 Page 6 1 regardless, and I think that's important for people to know. 2021-2022 Legislative Reapportionment The current Legislative Reapportionment Commission (LRC), tasked with drawing new legislative and senatorial districts pursuant to Article II, Section l7 of the Pennsylvania Constitution, is nearing completion of its Final Plan. As a result of the LRC process of moving the boundary lines contiguous territorcts in which House Members reside before and after the reapportionment process almost always change. Similar to the prior reapportionment cycle, House Members would like to begin commi.e., the district in which a House Member resides as determined by the Final Reapportionment Plan of the LRC, once the Final Plan is effective. The request for an advisory opinion notes that the Commission has a long history of orders and opinions addressing legislative communications related to reapportionment/redistricting. The request seeks to confirm the ability of the State Representatives to rely upon previously issued Opinions of the Commission with the same status and protections afforded by law to the individuals on whose behalf Opinion(s): Longietti, Opinion 13-002; Corey/Mann, Opinion 13-006; Winkelman, Opinion 13-007; and Corey/Mann, Opinion 14-003, were requested. By letter dated February 10, 2022, you were notified of the date, time and location of the public meeting at which your request would be considered. III. DISCUSSION: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), Opinions are issued to the requester based upon the facts that the requester has submitted. In issuing a ruling based upon the facts that the requester has submitted, this Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An Opinion only affords a defense to the extent the requester has truthfully disclosed all material facts. As members of the General Assembly elected by the public, the State Representatives are public officials 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. 1 aws.redistricting.state.pa.us/Redistricting/Resources/Video/080321 LRC Afternoon Session.mp4, at l:16:53, last accessed on February 2, 2022. Corey/Mann, 22-003 March 2, 2022 Page 7 65 Pa.C.S. § 1103(a). The following terms related to Section 1103(a) 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 the performance of duties and responsibilities unique to a particular public office or position of public employment. 65 Pa.C.S. § 1102. Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is prohibited ect to certain statutory office/employment or confidential information received through holding such a public position for the private pecuniary benefit of the public official/public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. The Pennsylvania Supreme Court has held that in order to violate Section 1103(a) of the Et benefit for himself, his family, or his business, and then must take action in the form of one or more specific steps Kistler v. State Ethics Commission, 610 Pa. 516, 528, 22 A.3d 223, 231 (2011). Rule 14 of the 2013-2014 General Operating Rules of the House provides for including but not limited to postage and printing services. In Longietti, Opinion 13-002, this Commission stated that an otherwise allowable private pecuniary benefit, and therefore would not form the basis for a violation of Section 1103(a) of the Ethics Act. This Commission followed longstanding Commission precedent (Rappaport, Order 126 \[decided in 1982\] and Fischer, Order 486 \[decided in 1986\]) and held that the Ethics Act would not prohibit the use of public funds to pay otherwise allowable expenses for postage and Corey/Mann, 22-003 March 2, 2022 Page 8 residents of a new legislative districts as determined by the Affirmed Final Reapportionment Plan, -political Legislative Newsletters, birthday and congratulatory greetings, and notices of upcoming legislative meetings and forums. The holdings of this Commission have remained consistent in finding that an otherwise allowable expenditure of constitute a private pecuniary benefit, and therefore would not form the basis for a violation of Section 1103(a) of the Ethics Act. See, Longietti, Opinion 13-002; Corey/Mann, Opinion 13- 006; Winkelman¸ Opinion 13-007. IV. CONCLUSION: As we held in Opinion 13-002 and Opinion 13-006, we hold again that the Ethics Act would not prohibit the State Representatives from using public funds to pay otherwise allowable expenses for postage and printing services for otherwise perm islative districts as determined by the final Reapportionment on-political Legislative Newsletters, birthday and congratulatory greetings, and notices of upcoming legislative meetings and forums as delineated in Longietti, Opinion 13-002. See, Longietti, Opinion 13-002; Corey/Mann, Opinion 13-006; Winkelman, supra; Rappaport, supra; Fischer, supra. Furthermore, we again hold that Section 1103(a) of the Ethics Act would not prohibit the State Representatives from using public funds to pay expenses for the transmission of electronic mail or robotic telephone calls for mass communication to residents of their new legislative districts, or the conduct of town halls, fairs and other types of events in their new legislative districts, subject to the condition that such expenditures the General Operating Rules of the House. See, Corey/Mann, Opinion 13-006. The propriety of the proposed course of conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(10) of the Ethics Act, 65 Pa.C.S. § 1107(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. This letter is a public record and will be made available as such. By the Commission, Nicholas A. Colafella Chair