HomeMy WebLinkAbout03-013 MooreOPINION OF THE COMMISSION
Reizdan B. Moore, Esquire
Chief Counsel, Democratic Caucus
423 Main Capitol
House Box 202020
Harrisburg, PA 17120 -2020
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Daneen E. Reese
Frank M. Brown
Donald M. McCurdy
Michael J. Healey
Paul M. Henry
DATE DECIDED: 12/2/03
DATE MAILED: 12/15/03
03 -013
Re: Conflict; Public Official; General Assembly; Representative; House of Representatives;
Legislative District Office; Vehicle; Lease; Purchase; Insurance; Expense;
Reimbursement; Pro -rata; Broad - coverage Insurance; Vehicle Personal Use; Vehicle
Legislative Use; Vehicle Campaign Use.
Dear Mr. Moore:
This Opinion is issued in response to your advisory request dated October 28, 2003.
I. ISSUE:
Whether the Public Official and Employee Ethics Law imposes any prohibition or
restrictions upon a member of the House of Representatives of the Commonwealth of
Pennsylvania from receiving prorated payments from the Commonwealth as to a broad —
coverage insurance policy on his district office and a vehicle he purchased when the vehicle is
used for legislative, campaign and personal purposes.
II. FACTUAL BASIS FOR DETERMINATION:
On behalf of a legislative member of the Democratic Caucus of the Pennsylvania
House of Representatives, you request an advisory as to whether the legislative member may
continue an insurance policy that provides insurance coverage for both the contents and
claims arising from the use of the member's legislative district office, and his personally owned
vehicle used for legislative travel, personal, and campaign purposes.
The operating procedures for the House of Representatives provide several methods
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by which a legislator may be reimbursed for legislative mileage. Different amounts for mileage
reimbursement are allowable based upon whether the vehicle is leased by the legislative
member, leased by the House, provided through the Department of General Services' Fleet
Lease program, or owned by the legislative member.
Prior to 2003, the legislative member had leased his vehicle and applied for
reimbursements based upon legislative use. The legislative member purchased another
vehicle and began using that vehicle for legislative, personal, and campaign purposes. In
addition, the vehicle is used by legislative employees to perform legislative services for the
legislative member. When the legislative member had leased his prior vehicle, he maintained
a broad - coverage" insurance policy which provided coverage for the contents and claims as
to his legislative district office. Further, the coverage extended to damages and liability
protection for his leased vehicle and its operation by legislative employees and "contractors.'
Although the "broad- coverage" insurance policy is relatively expensive, it provides a
discount for the combined vehicle and property coverage. The foregoing is separate from the
legislative member's homeowner policies for his primary and other residences for which he
makes payments from his private accounts.
The legislative member seeks to continue his "broad- coverage" policy for his owned
vehicle and legislative district office. The legislative member's insurance agent informed him
that a separate "stand- alone" policy for the vehicle is not available because of the unusual
nature of the needed coverage, that is, "a privately owned vehicle that must also be protected
during its operation by the company's employees for business use." The legislative member
seeks to continue the "broad- coverage" policy using one of the following three alternatives:
(The preferred plan.) Member A can use his accountable legislative funds to pay the
semi - annual remium for "broad- coverage" for both his legislative district office, and for
the portion of his automobile attributable to his legislative use. Member A will continue
to maintain mileage logs. One third 1/3 of the semi - annual .remium would be .aid
from legislative personal and campaign unds respectively. When combined, those
respective portions would equal the total semi - annual premium due on the policy. An
adjustment could be made afterwards to reimburse any of the funds for excessive or
insufficient payments.
2. (Preferred alternative.) Member A can use his accountable legislative funds to pay the
semi - annual premium for "broad- coverage" for both his legislative district office, and the
portion of his automobile attributable to his legislative use. Member A will continue to
maintain mileage logs. The portion of the semi - annual premium attributable to personal
and /or campaign use would be aid from those funds, respectively. When combined,
those respective portions would equal the total semi - annual premium due on the policy.
Under this plan, no reimbursement would be made to, or by, the legislative account.
3. Member A can use his accountable legislative funds to pay the total semi - annual
premium for "broad- coverage" for both the legislative office and his automobile.
Member A will continue to maintain mileage logs. The portion of the premium
attributable to Member A's personal and /or campaign use (based on the mileage logs)
will be reimbursed by member A to the House account that paid the insurance
premium. Under this plan the total semi - annual premium would be paid from a
legislative account, and that legislative account would be reimbursed for the non -
legislative portion of the premium." (Emphasis in original.)
You conclude by stating that you are unaware of any advisory on this issue, noting that
the Friend Order and Harper Opinion appear in your view to be distinguishable.
By letter dated October 31, 2003, you were notified of the date, time and location of the
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public 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 requestor based upon the facts
which the requestor has submitted. In issuing the advisory based upon the facts which the
requestor has submitted, this Commission does not engage in an independent investigation of
the facts, nor does it speculate as to facts which have not been submitted. It is the burden of
the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S.
§§ 1107(10), (11). An advisory only affords a defense to the extent the requestor has
truthfully disclosed all of the material facts.
As a member of the House of Representatives of the Commonwealth of Pennsylvania,
the legislative member is a public official as that term is defined in the Ethics Act, and hence
he is subject to the provisions of that Act. Gruitza, Opinion 95 -009.
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 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.
In addition, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no
person shall offer to a public official /employee anything of monetary value and no public
official /employee shall solicit or accept anything of monetary value based upon the
understanding that the vote, official action, or Judgment of the public official /employee would
be influenced thereby. Reference is made to these provisions of the law not to imply that there
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has been or will be any transgression thereof but merely to provide a complete response to the
question presented.
Section 1103(a) of the Ethics Act prohibits a public official /public employee 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.
In applying Section 1103(a) of the Ethics Act to the question posed, we will be guided
by our decision in Saurman, Opinion 94 -004. In Saurman, we held that a Representative was
not prohibited under Section 3(a) of the Ethics Act from purchasing or entering into a
subsequent lease as to a vehicle that had been leased for legislative business at
Commonwealth expense, provided the purchase or subsequent lease was at arms length
based upon the fair market value of the vehicle. Our analysis focused upon the requirement in
the Ethics Act that there may not be a use of the authority of office to obtain a private
pecuniary benefit. We reasoned that as long as the purchase price or subsequent lease was
at arms length and based upon the fair market value of the vehicle, there could be no private
pecuniary benefit and hence no conflict under the Ethics Act.
We will apply a similar approach to the instant matter guided by the principle in
Saurman that in the absence of a private pecuniary benefit, there is no conflict. We initially
note that this Commission does not have jurisdiction to interpret the Rules of the House of
Representatives. Rule 14, which deals with members' expenses, does not specifically
address payment for insurance for vehicles although there is a reference to incidental
expenses. To the extent the House Rules permit the provision of vehicle insurance at
Commonwealth expense, then such is permissible under the Ethics Act. The basis for the
foregoing is that if a financial gain is authorized in law, then the receipt of that gain is allowable
under the Ethics Act. See, Akerly, Order 976.
Assuming that Commonwealth paid insurance is permissible under the House Rules,
the question then becomes whether any of the three proposals for the apportionment of
expenses as to the broad coverage insurance would create a conflict for the legislative
member. Such would occur if a private pecuniary benefit would result as to the proration of
expenses for the insurance coverage.
A private pecuniary benefit would arise if the legislative member would receive more
than he is entitled as to the proration of the expenses for the broad coverage insurance
expenses. Generally, as to each of the three preferred methods for expense proration, the
intendment is to allocate personal, campaign and legislative payments as to the vehicle owned
by the legislative member.
We shall now review the second method you have proposed followed by a combined
review of methods one and three.
Under method two, the legislative member would only use the Commonwealth funds in
his legislative account for the insurance coverage expenses related to his district office and
the portion of insurance expense attributable to the use of his vehicle for legislative purposes.
The remainder of the vehicle insurance expense would be paid from campaign and personal
funds. This allocation method is consistent with Section 1103(a) of the Ethics Act. Since,
under this method, the payments from the legislative, campaign and personal accounts equate
to the usage of the vehicle's usage for three respective activities, such method is permissible
under the Ethics Act.
However, we find methods one and three to be problematic.
With method three, legislative funds would be used entirely to pay for the insurance
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expenses as to the vehicle and reimbursement would subsequently be made for non -
legislative activities. Since Commonwealth funds would be paid "up- front" for the vehicle
insurance when part of the vehicle usage would be for campaign or personal purposes, the
use of Commonwealth funds for the time period attributable to non - legislative uses could
possibly have a monetary value that would be more than de minimis under the Ethics Act.
The same concerns would exist as to method one. Under that method, a flat one- third
of the insurance expense would be paid from the legislative, campaign and personal accounts.
Subsequently, adjustments would be made with accompanying payments for the actual
respective usage for the three activities - legislative, campaign and personal uses. This
method could possibly result in Commonwealth funds being initially used to pay for the
insurance expenses when in some instances the legislative use would not reach the one -third
amount. In such a scenario, Commonwealth funds initially would have been used to pay that
differential even though a subsequent reimbursement would be made.
Since there is an inherent potential for problems to arise under methods one and three,
you would be well advised to utilize only method two. See, Confidential Opinion, 00 -007.
Further, it is imperative that meticulous records be maintained so that a clear division between
the three groups of expenses can be definitely determined.
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.
IV. CONCLUSION:
A member of the House of Representatives of the Commonwealth of Pennsylvania is a
public official and subject to the provisions of the Public Official and Employee Ethics Law, Act
9 of 1989, 65 Pa.C.S. § 1101 et seq. The House member may receive prorated payments
from the Commonwealth as to a broad - coverage insurance policy on his district office and a
vehicle he purchased when the vehicle is used for legislative, campaign and personal
purposes provided such insurance expenses are authorized by the House Rules, the
Commonwealth funds used from the legislative account pay for only the portion of the
insurance expenses attributable to the legislative use of the vehicle, and the proration
methodology does not create a private pecuniary benefit that would be more than de minimis to
the House member.
The propriety of the proposed conduct has only been addressed under the Ethics Act.
Pursuant to Section 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.
Finally, a party may request the Commission to reconsider its Opinion. The
reconsideration request must be received at this Commission within thirty days of the mailing
date of this Opinion. The party requesting reconsideration must include a detailed explanation
of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code §
21.29(b).
By the Commission,
Louis W. Fryman
Moore, 03 -013
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Chair