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HomeMy WebLinkAbout04-009 ConfidentialOPINION OF THE COMMISSION Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Daneen E. Reese Donald M. McCurdy Michael J. Healey Paul M. Henry Raquel K. Bergen DATE DECIDED: 6/8/04 DATE MAILED: 6/22/04 04 -009 Re: Conflict; Public Official; County; Official A; Official C; Political Contribution; Criminal Investigation /Prosecution; Incumbent; Non - Incumbent; Candidate. This Opinion is issued in response to your request for a confidential advisory dated April 16, 2004. I. ISSUE: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., presents any prohibition or restrictions upon an Official A who has made political contributions to the county Official C's campaign and has received political contributions from the county Official C for his own campaigns with regard to participating in the criminal investigation or prosecution of the county Official C. II. FACTUAL BASIS FOR DETERMINATION: As Official A for County B, you seek a confidential advisory from the State Ethics Commission based upon the following submitted facts. With the assistance of your office, the Pennsylvania State Police is currently conducting an ongoing investigation of the County B Official C, namely, Individual D. Both you and Individual D are members of Political Party E. You have made political contributions to Individual D's campaign and Individual D has made political contributions to your campaigns. You ask whether the giving or accepting of a campaign contribution forms the basis for a conflict of interest that would preclude your involvement in the criminal investigation or prosecution of Individual D. By letter dated April 27, 2004, you were notified of the date, time and location of the Confidential Opinion 04 -009 June 22, 2004 Page 2 executive 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 that the requestor has submitted. In issuing the advisory based upon the facts that the requestor 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 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. It is further initially noted that pursuant to the same aforesaid Sections of the Ethics Act, an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, this Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint, which will be investigated by this Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. As Official A for County B, you are a public official as that term is defined in the Ethics Act, and hence you are subject to the provisions of that Act. Sections 1103(a) and 1103(j) of the Ethics Act provide: § 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), (j). (j) Voting conflict. - -Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. Confidential Opinion 04 -009 June 22, 2004 Page 3 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. 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 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 each instance of a conflict, Section 1103(j) requires the public official /employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor. Additionally, we parenthetically note that Sections 1103(b) and 1103(c) of the Ethics Act, pertaining to improper influence, provide as follows: §1103. Restricted activities (b) Seeking improper influence. —No person shall offer or give to a public official, public employee or nominee or candidate for public office or a member of his immediate family or a business with which he is associated, anything of monetary value, including a gift, loan, political contribution, reward or promise of future employment based on the offeror's or donor's understanding that the vote, official action or judgment of the public official or public employee or nominee or candidate for public office would be influenced thereby. (c) Accepting improper influence. —No public official, public employee or nominee or candidate for public office shall solicit or accept anything of monetary value, including a gift, loan, political contribution, reward or promise of future employment, based on any understanding of that public official, public employee or nominee that the vote, official action or judgment of the public official or public employee or nominee or candidate for public office would be influenced thereby. Confidential Opinion 04 -009 June 22, 2004 Page 4 65 Pa.C.S. §§ 1103(b), (c). The term "person" is defined in the Ethics Act as follows: § 1102. Definitions "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. 65 Pa.C.S. § 1102. We note Sections 1103(b) and 1103(c) of the Ethics Act not to suggest that you would engage in such conduct, but merely to provide a complete response to the questions presented. Finally, the Ethics Act defines "gift" as follows. § 1102. Definitions "Gift." Anything which is received without consideration of equal or greater value. The term shall not include a political contribution otherwise reported as required by law or a commercially reasonable loan made in the ordinary course of business. 65 Pa.C.S. § 1102 (Emphasis added). In applying the above provisions of the Ethics Act to the question that you have posed, it is initially noted that the only existing Commission Opinion that considers whether political contributions may form the basis for a conflict of interest is Wolfgang, Opinion 89 -028. In Wolfgang, this Commission addressed the issue of whether a non - incumbent candidate for office who received political contributions from building contractors could, if elected, vote on issues involving those contractors without transgressing Section 3(a) of the Ethics Law. We determined that because Wolfgang was a non - incumbent candidate, Section 3(a) did not apply; thus, we were limited to deciding the matter based only upon Sections 3(b) and 3(c) of the Ethics Law (pertaining to improper influence). Under the submitted facts, it is not clear whether you were an incumbent or non - incumbent candidate at the times you received political contributions from Individual D. Therefore, you are generally advised that for donations you received as a non - incumbent, Wolfgang, supra, would apply, Section 1103(a ) would not be relevant, and only Sections 1103(b) and 1103(c) would be considered. For donations you received as an incumbent, all of these Sections would be considered. Based upon the above, you are advised that for any political contributions you received from Individual D while you were a non - incumbent, the Ethics Act would not restrict you from investigating or prosecuting Individual D, conditioned upon the assumption that there has been no improper influence based upon understanding(s) as to such contributions. As for any political contributions you received from Individual D while you were an incumbent, you are advised that you would be precluded from any involvement as to the investigation or prosecution of Individual D if: (1) any improper influence based upon understanding(s) as to such contributions would exist; or (2) the elements of a conflict of interest would exist. In making a determination as to whether a conflict of interest would exist, there have been various cases before this Commission in which we have found violations of the Ethics Confidential Opinion 04 -009 June 22, 2004 Page 5 Act based upon particular facts involving public officials accepting gifts from vendors or individuals and acting upon matters which the donors had pending before the governmental body. See, e.q., Sickles, Order 901; Helsel, Order 801; Volpe, Order 579 -R; Smith, Order 578 -R; Zollo, Order No. 577. As these cases illustrate, we consider certain factors, including the amount of the gift and the timing of the gift, to be relevant. For example, where the value of the gift is "de minimis" (insignificant) or where the gift is received at a remote point in time so as not to impact the public official's official action as to the donor, the public official does not have a conflict of interest. Although a properly reported political contribution is not a "gift" as that term is defined under the Ethics Act (see, 65 Pa.C.S. § 1102), political contributions are things of value so as to make prior precedent involving gifts analogous and instructive. The decision as to whether a conflict of interest is presented by the receipt of a thing of value such as a political contribution is determined on a case -by -case basis. You have provided very limited facts in relation to the political contributions between you and Individual D. Without additional facts, it is unknown whether the political contributions that you and Individual D made to each other's campaigns occurred so close in time so as to create a set- off, whether the amounts were de minimis or significant, or whether other relevant factors existed that would impact a determination of whether you would have a conflict of interest under the Ethics Act. In the absence of sufficient facts, a conclusive determination cannot be made and only the above general guidance can be provided as to whether you would have a conflict of interest based upon political contributions received from Individual D while you were an incumbent. In each instance of a conflict of interest, you would be required to abstain fully from participation and to satisfy the disclosure requirements of Section 1103(j) as set forth above. 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. This decision is restricted by the limited facts provided. Further this Commission cannot address other matters including: (1) whether the Official A has jurisdiction to conduct the investigation rather than Office F; and (2) whether, under the G, there may be other issues present. IV. CONCLUSION: An Official A would be considered to be a "public official" subject to the provisions of the Ethics Act. A political contribution otherwise reported as required by law, while not a "gift," could form the basis for a conflict of interest under Section 1103(a) of the Ethics Act. The Official A would be precluded from participating in the investigation or prosecution of the county Official C if, while the Official A was an incumbent or a non - incumbent candidate, the individual now serving as the county Official C made political contributions to the Official A's campaign and any improper understandings in contravention of the Ethics Act existed. Conditioned upon the assumption that no improper understandings existed, the Official A would be precluded from participating in the investigation or prosecution of the county Official C only if: (1) the political contributions were received while the Official A was an incumbent; and (2) the elements of a conflict of interest would exist. A conflict of interest would exist if the amount of the political contributions was greater than de minimis, and the political contributions were received at such a time and under such circumstances as to impact the Official A's official action as to the county Official C. 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 Confidential Opinion 04 -009 June 22, 2004 Page 6 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 Chair