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HomeMy WebLinkAbout22-008 Hazelwood 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 DATE DECIDED: 4/21/22 DATE MAILED: 4/22/22 22-008 Tara L. Hazelwood, Esquire Chief Counsel House Democratic Caucus Pennsylvania House of Representatives 620 Main Capitol Building P.O. Box 202248 Harrisburg, PA 17120-2248 Dear Ms. Hazelwood: This responds to your correspondence of March 16, 2022, by which you requested an advisory opinion from this Commission. I. ISSUE: Whether the Public Official and 1101 et seq., would prohibit Pennsylvani, who are Members of the Democratic Caucus of the Pennsylvania House of Representatives, from using public funds to pay expenses for the following: Hazelwood, 22-008 April 21, 2022 Page 2 (1) Postage, printing, the transmission of electronic mail and robotic telephone calls for otherwise permissible mass communication to residents districts in which the State Representatives would reside as determined by the final Reapportionment Plan of the Legislative Reapportionment Commission for the Pennsylvania 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 their legislative districts. II. FACTUAL BASIS FOR DETERMINATION: In your capacity as Chief Counsel for the Democratic Caucus of the Pennsylvania House of Representat, you have been authorized by the House Democratic Caucus to request an advisory opinion from this Commission on the same subject matter and questions that we addressed in Corey/Mann, Opinion 22-003. The question that is presented by your advisory request is whether those State Representatives who are currently or who will in the future be Members of the House Democratic Caucus (hereinafter referred to as the State Representatives/House Democratic Caucus Members) may rely upon Corey/Mann, Opinion 22-003, with the same status and protections afforded by law to the Members of the House Republican Caucus on whose behalf Opinion 22-003 was requested (hereinafter referred to as the State Representatives/House Republican Caucus Members). We take administrative notice of the following. In Opinion 22-003, the submitted facts included, in pertinent part, that: (1) the Legislative Reapportionment Commission, tasked with drawing new legislative and senatorial districts pursuant to Article II, Section 17 of the Pennsylvania 1 Constitution, was nearing completion of its final Reapportionment Plan; (2) Rule 14 of the General Operating Rules of the House permits 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; (3) 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; (4) Section 5.2 of the Handbook for Pennsylvania House Members, 2021-2022 Session, which establishes guidelines for fairs and other legislative events, provides that if legislative funds or resources are used, there must be a clear legislative purpose for holding or participating in the event; (5) the Ethical and Professional Conduct Rules of the House impose certain restrictions upon mass communicationwith House funds; (6) House Members communicate with and provide legislative services to both residents and nonresidents of their existing legislative districts; and (7) 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. 1 On March 16, 2022, the Pennsylvania Supreme Court affirmed the final Reapportionment Plan of the Legislative Reapportionment Commission. Hazelwood, 22-008 April 21, 2022 Page 3 The State Representatives/House Republican Caucus Members expressed their desire to begin comm districts, i.e., the legislative district in which a House Member resides as determined by the Final Reapportionment Plan of the Legislative Reapportionment Commission, once the Final Reapportionment Plan is effective. The question posed by the advisory request was whether the Ethics Act would prohibit the State Representatives/House Republican Caucus Members from using public funds to pay expenses for the following: (1) postage, printing, the transmission of electronic mail and robotic telephone calls for otherwise permissible mass communication to residents of their in which a State Representative would reside as determined by the final Reapportionment Plan of the Legislative Reapportionment Commission for the House 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 their legislative districts. In Corey/Mann, Opinion 22-003, we noted that the holdings of this Commission have remained consistent in finding that an otherwise allowable expenditure of public funds for a mailing constituting official business would not 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. We further noted that our prior holding in Corey/Mann, Opinion 13-006, addressed the use of public funds to pay expenses for the transmission of electronic mail or robotic telephone calls for mass communication to residents of a State Representatives new legislative district as well as expenses for the conduct of town halls, fairs, and other types of events in a State Representatives new legislative district. See also, Corey/Mann, Opinion 14-003. Under the submitted facts of Opinion 22-003, and consistent with our prior holdings noted above, we first held that the Ethics Act would not prohibit the State Representatives/House Republican Caucus Members 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 Plan. We held that such items constwould include non-political Legislative Newsletters, birthday and congratulatory greetings, and notices of upcoming legislative meetings and forums as delineated in Longietti, supra. We further held that Section 1103(a) of the Ethics Act would not prohibit the State Representatives/House Republican Caucus Members 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; see also, Corey/Mann, Opinion 14-003. In the instant matter, your request for an advisory does not present any additional facts or questions beyond those stated in Corey/Mann, Opinion 22-003. By letter dated April 1, 2022, you were notified of the date, time and location of the public meeting at which your request would be considered. Hazelwood, 22-008 April 21, 2022 Page 4 At the public meeting on April 21, 2022, you appeared and offered to answer any questions of the Members of this Commission. 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. The State Representatives/House Democratic Caucus Members 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. 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. Hazelwood, 22-008 April 21, 2022 Page 5 65 Pa.C.S. § 1102. Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is prohibited from engaging in conduct that constitutes a ect to certain statutory use of the authority of public 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 Etivate 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 thKistler v. State Ethics Commission, 610 Pa. 516, 528, 22 A.3d 223, 231 (2011). Rule 14 of the General Operating Rules of the House provides for money appropriated for the allowable expenses of House Members to be used for any legislative purpose or function, including but not limited to postage and printing services. An otherwise allowable expenditure of public funds for a mailing constituting official business would not 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, supra; Corey/Mann, Opinion 13- 006; Winkelman, supra; Corey/Mann, Opinion 14-003; Corey/Mann, Opinion 22-003. Consistent with our prior holdings noted above, we hold in the instant matter that the Ethics Act would not prohibit the State Representatives/House Democratic Caucus Members from using public funds to pay otherwise allowable expenses for postage and printing services for otherwise permissible mailings of items islative districts as determined by the final Reapportionment Plan. Such items would include non-political Legislative Newsletters, birthday and congratulatory greetings, and notices of upcoming legislative meetings and forums as delineated in Longietti, Opinion 13-002. See also Corey/Mann, Opinion 13-006; Winkelman, supra; Corey/Mann, Opinion 14-003; Corey/Mann, Opinion 22-003. We further hold in the instant matter that under the submitted facts of Corey/Mann, Opinion 22-003, Section 1103(a) of the Ethics Act would not prohibit the State Representatives/House Democratic Caucus Members 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 would in full compliance with the General Operating Rules of the House. See, Corey/Mann, Opinion 22- 003. IV. CONCLUSION: Hazelwood, 22-008 April 21, 2022 Page 6 The State Representatives/House Democratic Caucus Members are public officials subject to the provisions of the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1101 et seq. The Ethics Act would not prohibit the State Representatives/House Democratic Caucus Members from using public funds to pay otherwise allowable expenses for postage and printing services for otherwise permissi their new legislative districts as determined by the final Reapportionment Plan. Such items would include non-political Legislative Newsletters, birthday and congratulatory greetings, and notices of upcoming legislative meetings and forums as delineated in Longietti, Opinion 13-002. Under the submitted facts of Corey/Mann, Opinion 22-003, Section 1103(a) of the Ethics Act would not prohibit the State Representatives/House Democratic Caucus Members 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. 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