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Home My WebLink About23-547 JumperPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: Ronald N. Jumper Chief Counsel Democrat Legal Staff 535 E. Main Capitol Harrisburg, PA 17120 Dear Mr. Jumper: 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 August 14, 2023 23-547 This responds to your letter dated July 25, 2023, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the general 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 a state legislator in her capacity as a public official if the state legislator, in her private capacity, would become a member of the board of directors of a 501(c)(3) non-profit organization that provides services to individuals suffering from substance use disorders and abuse. Brief Answer: If the state legislator would become a member of the non-profit organization's board of directors, the non-profit organization would be considered a business with which the state legislator is associated. Pursuant to Section 1103(a) of the Ethics Act, in her capacity as a public official, the state legislator generally would be prohibited from using the authority of her public position to effectuate a private pecuniary (financial) benefit to the non-profit organization. However, Section 1103(a) of the Ethics Act would not apply to the state legislator insofar as her activities would constitute "legislative actions" (introducing, considering, debating, voting, enacting, adopting, or approving legislation). Jumper, 23-547 August 14, 2023 Page 2 Facts: You request an advisory from the Commission on behalf of Pennsylvania State Senator Amanda M. Cappelletti ("Senator Cappelletti"). You have submitted facts that may be fairly summarized as follows. Senator Cappelletti was elected to the Pennsylvania Senate in November 2020. Senator Cappelletti represents the 17Ih Senatorial District, and she serves as the Democratic Chair of the Senate State Government Committee. Senator Cappelletti has been asked to join the Board of Directors of Savage Sisters Recovery, Inc. ("Savage Sisters Recovery"), which is a 501(c)(3) non-profit organization. Savage Sisters Recovery provides services, including housing assistance, outreach, and education services, to individuals in the greater Philadelphia area who are suffering from substance use disorders and abuse. Based upon the types of services that Savage Sisters Recovery provides, it is likely that Savage Sisters Recovery will apply for grants, loans, or other financial assistance from the Commonwealth. You seek guidance as to whether the Ethics Act would impose any prohibitions or restrictions upon Senator Cappelletti in her capacity as a public official if she would become a Member of the Board of Directors of Savage Sisters Recovery. 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: § 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 Jumper, 23-547 August 14, 2023 Page 3 "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. "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. Section 1103(a) of the Ethics Act restricts public officials/public employees in their public capacities, not their private capacities. 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 (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. 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 Jumper, 23-547 August 14, 2023 Page 4 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 the Commission. See, Mann, Opinion 07-005; Confidential Opinion, 05-002; Corrigan, Opinion 87-001. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. In her capacity as a Member of the Pennsylvania Senate, Senator Cappelletti is a public official subject to the provisions of the Ethics Act. If Senator Cappelletti would become a Member of the Savage Sisters Recovery Board of Directors, Savage Sisters Recovery would be considered a business with which Senator Cappelletti is associated. See, Rendell v. State Ethics Commission, 603 Pa. 292, 983 A.2d 708 (2009) (holding that the definition of the term "business" as set forth in the Ethics Act includes a non-profit entity). Pursuant to Section 1103(a) of the Ethics Act, in her capacity as a Member of the Pennsylvania Senate, Senator Cappelletti generally would be prohibited from using the authority of her public position to effectuate a private pecuniary (financial) benefit to Savage Sisters Recovery. However, Section 1103(a) of the Ethics Act would not apply to Senator Cappelletti insofar as her activities would constitute legislative actions. Section 1103(a) of the Ethics Act would prohibit Senator Cappelletti from using her status as a state legislator in furtherance of securing grants, loans, or other financial assistance from the Commonwealth on behalf of Savage Sisters Recovery. See, Confidential Opinion, 05-002; Confidential Opinion, 05-009. 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. Jumper, 23-547 August 14, 2023 Page 5 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