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Home My WebLink About23-564 Jumper 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 ADVICE OF COUNSEL December 27, 2023 To the Requester: Ronald N. Jumper Chief Counsel Democrat Legal Staff 535 E. Main Capitol Harrisburg, PA 17120 23-564 Dear Mr. Jumper: This responds to your letter dated December 11, 2023, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the issue presented below: Issue: Whether a state legislator or his staff would run afoul of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., if a proposed “pilot program” would be implemented whereby staff of a licensed health care provider would use space in the state legislator’s district office in order to assist constituents by referring them to health care providers for health care services which they may need, where there would be no charge to the licensed health care provider for the use of the space in the district office and no charge to constituents who would use the licensed health care provider’s referral services. Brief Answer: There is no basis in the submitted facts to conclude that the implementation of the “pilot program” would result in a private pecuniary (financial) benefit to the state legislator, a member of his immediate family, or a business with which he or a member of his immediate family is associated. There is further no basis in the submitted facts to conclude that the implementation of the “pilot program” would result in a private pecuniary benefit to any member of the state legislator’s staff. Accordingly, there is no basis in the Jumper, 23-564 December 27, 2023 Page 2 submitted facts upon which to conclude that the implementation of the “pilot program” would cause the state legislator or his staff to run afoul of the Ethics Act. Facts: You request an advisory from the Commission on behalf of Pennsylvania State Senator Jimmy Dillon (“Senator Dillon”). You have submitted facts that may be fairly summarized as follows. Aurora Home Care is a health care provider licensed by the Pennsylvania Department of Health. Aurora Home Care is a Medicare, Medicaid, and CHAP certified agency which provides various medical services, including home health care, pediatric care, and assistance to veterans relating to program eligibility. Aurora Home Care met with Senator Dillon and his staff to discuss the establishment of a “pilot program” that would be located in Senator Dillon’s district office and made available to constituents. The “pilot program” would permit Aurora Home Care staff to use space in Senator Dillon’s district office not more than twice a month in order to assist constituents by referring them to health care providers for health care services which they may need. A constituent could be referred to Aurora Home Care if its health care services would be appropriate for the constituent. Aurora Home Care’s referral services would be advertised by it and Senator Dillon’s district office through mail, social media, and other media services. There would be no charge to Aurora Home Care for the use of the space in Senator Dillon’s district office and no charge to constituents who would use Aurora Home Care’s referral services. You seek guidance as to whether the Ethics Act would impose any prohibitions or restrictions upon Senator Dillon or his staff with respect to the proposed “pilot program” whereby Aurora Home Care would use space in Senator Dillon’s district office in order to assist constituents by referring them to health care providers for health care services which they may need. 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 Jumper, 23-564 December 27, 2023 Page 3 (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. 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 \[public Jumper, 23-564 December 27, 2023 Page 4 official/public employee\] 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 his capacity as a Member of the Pennsylvania Senate, Senator Dillon is a public official subject to the provisions of the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, Senator Dillon would be prohibited from using his status as a state legislator or otherwise using the authority of his public office—subject to the exemption for “legislative actions” delineated above—or using Commonwealth resources or facilities or confidential information accessed or received as a result of being in his public position in furtherance of a private pecuniary (financial) benefit for himself, a member of his immediate family, or a business with which he or a member of his immediate family is associated. There is no basis in the submitted facts to conclude that the implementation of the proposed “pilot program” whereby Aurora Home Care would use space in Senator Dillon’s district office in order to assist constituents by referring them to health care providers for health care services which they may need would result in a private pecuniary benefit to Senator Dillon, a member of his immediate family, or a business with which he or a member of his immediate family is associated. There is further no basis in the submitted facts to conclude that the implementation of the “pilot program” would result in a private pecuniary benefit to any member of Senator Dillon’s staff. Accordingly, you are advised that there is no basis in the submitted facts upon which to conclude that the implementation of the “pilot program” would cause Senator Dillon or his staff to run afoul of the Ethics Act. 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. Jumper, 23-564 December 27, 2023 Page 5 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 receivedat the Commission within thirty (30) days of the date of this Advice pursuant to 51Pa. 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