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HomeMy WebLinkAbout22-007 ConfidentialPHONE: 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 DATE DECIDED: 4/21/22 DATE MAILED: 4/22/22 To the Requester: 22-007 This Opinion is issued in response to your letter dated March 3, 2022, by which you requested a confidential advisory from this Commission. I. ISSUE: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon a Member of the Pennsylvania General Assembly (the "State Legislator") specifically a Member of the [CHAMBER] who in a private capacity is the [POSITION] and [OFFICER] of a [TYPE OF FIRM], with regard to: (1) Engaging with current or potential clients on behalf of the [TYPE OF FIRM], provided that the State Legislator's communications would not reference the [CHAMBER], would not be made using [CHAMBER] email, letterhead, telephones, offices, or other [CHAMBER] resources, and would not reference the State Legislator's position as a Member of the [CHAMBER]; or (2) Supporting or advocating for an award of state grants to individuals or entities that are clients of the [TYPE OF FIRM]. IL FACTUAL BASIS FOR DETERMINATION: You have been authorized by the Honorable [NAME OF STATE LEGISLATOR] (the Confidential Opinion, 22-007 April 22, 2022 Page 2 "State Legislator"), who is a Member of the [CHAMBER], to request a confidential advisory from this Commission on his behalf. You have submitted facts that may be fairly summarized as follows. The State Legislator was elected to represent the residents of the [LEGISLATIVE DISTRICT] (covering all of [COUNTY] and portions of [COUNTIES]) [UNDER CERTAIN ELECTION -RELATED CIRCUMSTANCES]. In a private capacity, the State Legislator is the [POSITION] and [OFFICER] of a [TYPE OF FIRM] named [NAME OF FIRM] (the "Firm"), located in [GEOGRAPHICAL LOCATION]. The State Legislator first j oined the Firm in [YEAR] as the [TITLE], and he moved into his current role in [YEAR]. The Firm offers [CERTAIN PRODUCTS/SERVICES] to a wide variety of [TYPES OF CLIENTS], primarily in [GEOGRAPHICAL LOCATION]. The Firm's [SPECIFIC TYPE OF CLIENTS] includes [CERTAIN ENTITIES], some of which became clients prior to the State Legislator's election to the [CHAMBER]. In the course of marketing to potential clients, the Firm engages in marketing to both [TYPES OF CLIENTS]. The Firm solicits [TYPES OF ENTITIES] through a variety of communication methods including [CERTAIN METHODS]. Similar activities are engaged in with regard to [OTHER POTENTIAL CLIENTS]. The State Legislator intends to continue serving as the [POSITION] and [OFFICER] of the Firm while he is a Member of the [CHAMBER]. In particular, the State Legislator intends to market the Firm to potential clients through communications that would not reference the [CHAMBER] or the State Legislator's position with that body. Once the State Legislator's marketing efforts identified a prospective client, the State Legislator would [ENGAGE IN A PARTICULAR ACTIVITY]. The State Legislator would not be actively involved in [A CERTAIN ACTIVITY THAT WOULD BE HANDLED BY ANOTHER INDIVIDUAL]. Before the State Legislator was elected to represent the [LEGISLATIVE DISTRICT], many [TYPE OF ENTITIES] that are clients of the Firm had requested grant support from the office of the [LEGISLATIVE DISTRICT]. The Firm's [PARTICULAR TYPE OF CLIENTS] may in the future also seek such grant support. You state that if a request for grant support would be submitted to the State Legislator's office by a Firm client, any such request would be evaluated independent of any past, current, or potential future engagement of the client with the Firm. Based upon the above submitted facts, you pose the following questions: (1) Whether the Ethics Act would permit the State Legislator to engage with current or potential clients on behalf of the Firm, provided that his communications would not reference the [CHAMBER], would not be made using [CHAMBER] email, letterhead, telephones, offices, or other [CHAMBER] resources, and would not reference his position as a Member of the [CHAMBER]; and (2) Whether the Ethics Act would prohibit the State Legislator from supporting or advocating for an award of state grants to individuals or entities that are clients of the Firm. Confidential Opinion, 22-007 April 22, 2022 Page 3 By letter dated April 1, 2022, you were notified of the date, time and location of the executive 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), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory 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 advisory only affords a defense to the extent the requester has truthfully disclosed all material facts. As a Member of the [CHAMBER], the State Legislator 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 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. Confidential Opinion, 22-007 April 22, 2022 Page 4 "Immediate family." A parent, spouse, child, brother or sister. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self-employed individual, holding company, joint 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. Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is prohibited from using the authority of public office/employment or confidential information received by 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. Per the Pennsylvania Supreme Court's decision in Kistler v. State Ethics Commission, 610 Pa. 516, 22 A.3d 223 (2011), in order to violate Section 1103(a) of the Ethics Act, a public official/public employee: ... must act in such a way as to put his [office/public position] to the purpose of obtaining for himself a private pecuniary benefit. Such directed action implies awareness on the part of the [public official/public employee] of the potential pecuniary benefit as well as the motivation to obtain that benefit for himself. Kistler, supra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics Act, a public official/public employee "must be consciously aware of a private pecuniary benefit for himself, his family, or his business, and then must take action in the form of one or more specific steps to attain that benefit." Id., 610 Pa. at 528, 22 A.3d at 231. To the extent the activities of a state legislator relate to "legislative actions" (introducing, considering, debating, voting, enacting, adopting, or approving legislation), they are constitutionally controlled and are exempt from the purview of the Ethics Act and this Commission. Confidential Opinion, 05-002; Corrigan, Opinion 87-001. Section 1103(a) of the Ethics Act, which restricts public officials/public employees in their public capacities and not their private capacities, does not prohibit public officials/public employees from having outside business activities or employment. However, a public official/public employee may not, in whole or in part, use his public position to solicit business for himself or a business with which he is associated. Guloien, Opinion 90-011. In this regard, a public official/public employee would have to exercise diligence and care to ensure that his status as a public official/public employee would not be used in soliciting or obtaining business. Id.; cf., Confidential Opinion, 22-007 April 22, 2022 Page 5 Confidential Opinion, 05-002; Confidential Opinion, 05-009; Alexander, Opinion 12-001. Having set forth the above general principles, you are advised as follows. The Firm is a business with which the State Legislator is associated in his capacity as the [POSITION] and an officer (i.e., [OFFICER]). Because Section 1103(a) of the Ethics Act does not restrict public officials/public employees in their private capacities, Section 1103(a) of the Ethics Act would not prohibit the State Legislator, in his private capacity as the [POSITION] and [OFFICER] of the Firm, from engaging with current or potential clients on behalf of the Firm, where his communications would not reference the [CHAMBER], would not be made using [CHAMBER] email, letterhead, telephones, offices, or other [CHAMBER] resources, and would not reference his position as a Member of the [CHAMBER]. Section 1103(a) of the Ethics Act would not prohibit the State Legislator from supporting or advocating for an award of state grants to individuals or entities that are clients of the Firm unless: (1) he would be consciously aware of a private pecuniary benefit for himself or the Firm; and (2) his action would constitute one or more specific steps to attain that benefit. See, Kistler, supra. 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. Specifically not addressed herein is the Legislative Code of Ethics, 46 P.S. § 143.1 et s�Mc., or the [REDACTED]. IV. CONCLUSION: As a Member of the Pennsylvania General Assembly specifically a Member of the [CHAMBER] the Honorable [NAME OF STATE LEGISLATOR] (the "State Legislator") is a public official subject to the provisions of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et seq. The [TYPE OF FIRM] named [NAME OF FIRM] (the "Firm") is a business with which the State Legislator is associated in his capacity as the [POSITION] and an officer (i.e., [OFFICER]) of the Firm. Because Section 1103(a) of the Ethics Act does not restrict public officials/public employees in their private capacities, Section 1103(a) of the Ethics Act would not prohibit the State Legislator, in his private capacity as the [POSITION] and [OFFICER] of the Firm, from engaging with current or potential clients on behalf of the Firm, where his communications would not reference the [CHAMBER], would not be made using [CHAMBER] email, letterhead, telephones, offices, or other [CHAMBER] resources, and would not reference his position as a Member of the [CHAMBER]. Section 1103(a) of the Ethics Act would not prohibit the State Legislator from supporting or advocating for an award of state grants to individuals or entities that are clients of the Firm unless: (1) he would be consciously aware of a private pecuniary benefit for himself or the Firm; and (2) his action would constitute one or more specific steps to attain that benefit. Pursuant to Section 1107(10) of the Ethics Act, 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. Confidential Opinion, 22-007 April 22, 2022 Page 6 This letter is a public record and will be made available as such. By the Commission, p6t" Nicholas A. ColafeIla Chair