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HomeMy WebLinkAbout23-527 BattPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov ADVICE OF COUNSEL May 10, 2023 To the Requester: Joseph M. Batt, Esquire Dear Mr. Batt: 23-527 This responds to your letter dated April 13, 2023, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the issue presented below: Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et sec.., would impose prohibitions or restrictions upon an individual serving as Deputy Adjutant General — Veterans Affairs of the Pennsylvania Department of Military and Veterans Affairs with regard to attending and making a presentation at a business symposium/event hosted by a company that supplies chimney and hearth products, where: (1) the individual would make a presentation on the hiring of veterans; (2) the individual would make the presentation in her private capacity as a Brigadier General (PA), U.S. Army, Retired, and not in her official Commonwealth capacity; (3) the individual would pay all costs, including those for travel and lodging, associated with her attendance at the business symposium/event; and (4) the individual would use annual leave for any time that she would be absent from her Commonwealth obligations. BriefAnswer: Based upon the submitted facts, Section 1103(a) of the Ethics Act (pertaining to conflict of interest) would not prohibit or restrict the individual from attending the business symposium/event and making a presentation on the hiring of veterans. Batt, 23-527 May 10, 2023 Page 2 Facts: You request an advisory from the Commission on behalf of Brigadier General (PA) Maureen Weigl ("Brig. Gen. Weigl") based upon submitted facts that may be fairly summarized as follows. Brig. Gen. Weigl retired from the U.S. Army in May 2016. Brig. Gen Weigl was appointed as Deputy Adjutant General — Veterans Affairs of the Pennsylvania Department of Military and Veterans Affairs on April 12, 2021. Brig. Gen. Weigl has been friends with Mike Calomino ("Mr. Calomino") since high school. Mr. Calomino is employed as Vice President — Academy & Industry Affairs for Copperfield Chimney Supply, which has been described as the nation's leading supplier of chimney and hearth products. In July 2023, Mr. Calomino will host a business symposium/event ("the Symposium") at three locations for business owners who are customers of Copperfield Chimney Supply and for potential customers of Copperfield Chimney Supply. The Symposium will be held in Scranton, Pennsylvania on July 13, in Asheville, North Carolina on July 20, and in Reno, Nevada on July 27. Mr. Calomino has asked Brig. Gen. Weigl to attend the Symposium as a subject matter expert on the hiring of veterans. As the attendees at the Symposium would include business owners who can hire employees, Mr. Calomino would like Brig. Gen. Weigl to make apresentation on the topic of why veterans should be hired and the best process for hiring veterans. You state that Brig. Gen. Weigl would appear and present at the Symposium in her private capacity as a retired veteran of the U.S. Army and not in her official Commonwealth capacity as Deputy Adjutant General — Veterans Affairs. Brig. Gen. Weigl would pay all costs, including those for travel and lodging, associated with her attendance at the Symposium, and she would use annual leave for any time that she would be absent from her Commonwealth obligations. You seek guidance as to whether the Ethics Act would impose any prohibitions or restrictions upon Brig. Gen. Weigl with regard to attending and making a presentation at the Symposium. Discussion: 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, the 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. Section 1103(a) of the Ethics Act provides: Batt, 23-527 May 10, 2023 Page 3 § 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. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict" or "conflict of interest" (i.e., the "de minimis exclusion" or the "class/subclass exclusion"), 65 Pa.C.S. § 1102, a public official/public employee is prohibited from using the authority of public office or confidential information received by holding such a public position for the private pecuniary (financial) 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. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As Deputy Adjutant General — Veterans Affairs of the Pennsylvania Department of Military and Veterans Affairs, Brig. Gen. Weigl is a public official/public employee subject to the Batt, 23-527 May 10, 2023 Page 4 provisions of the Ethics Act. Based upon the submitted facts, Section 1103(a) of the Ethics Act would not prohibit Brig. Gen. Weigl from attending and making a presentation at the Symposium in that she is not using the authority of public office or confidential information received by holding such a public position for the private pecuniary (financial) benefit of herself, any member of her immediate family, or a business with which she or a member of her immediate family is associated. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, an 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 requester has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. 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. Respectfully, Bridget K. Guilfoyle Chief Counsel