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HomeMy WebLinkAbout04-010 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 -010 Re: Conflict; Public Official; Member; Pennsylvania General Assembly; Legislator; A; Solicitation of Business From Governmental Entities, and Private Businesses and Law Firms that Lobby. This Opinion is issued in response to your advisory request dated April 14, 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 a member of the Pennsylvania General Assembly (Legislator) who is also an A with regard to soliciting and procuring B business from: (1) governmental entities including municipalities, school districts, and authorities within or outside of the Legislator's legislative district; (2) a regional authority that may receive yearly subsidies from the Commonwealth; and (3) businesses and law firms that also provide state lobbying services to their clients. II. FACTUAL BASIS FOR DETERMINATION: You have requested a confidential advisory from this Commission. In your public capacity, you are a Legislator. In your private capacity, you are an A. You have posed a specific question as to whether the Ethics Act would impose any prohibitions or restrictions upon you with regard to soliciting and procuring B business from: (1) governmental entities including municipalities, school districts, and authorities within or outside of your legislative district; (2) a regional authority that may receive yearly subsidies from the Commonwealth; and (3) businesses and law firms that also provide state lobbying services to their clients. By letter dated April 27, 2004, you were notified of the date, time and location of the 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, Confidential Opinion 04 -010 June 22, 2004 Page 2 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. As a Legislator, you are a public official subject to the provisions of the Ethics Act. 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. "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(j) of the Ethics Act sets forth requirements for abstention and disclosure Confidential Opinion 04 -010 June 22, 2004 Page 3 by a public official or public employee with a conflict of interest: § 1103. Restricted activities (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. 65 Pa.C.S. § 1103(j). However, to the extent the activities of a 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 State Ethics Commission. Corrigan, Opinion 87 -001. The question that you have posed for review by this Commission does not pertain to "legislative actions," but rather, to your activities in soliciting private business. We note that in promulgating the Ethics Act, the General Assembly specifically recognized that many p ublic officials, including Legislators, are citizen - officials and should not be discouraged maintaining contacts with their community through their occupations /professions. 65 Pa.C.S. § 1101.1(b). Thus, Section 1103(a) of the Ethics Act pertaining to conflicts of interest does not prohibit public officials /public employees from having outside business activities or employment. However, the public official /public employee may not use the authority of his public position - -or confidential information obtained by being in that position - -for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. Some examples of conduct that would be prohibited under Section 1103(a) would include: (1) the pursuit of a private business opportunity in the course of public action, Metrick, Order 1037; and (2) the use of governmental facilities, such as governmental telephones, postage, staff, equipment, research materials, or other property, or the use of governmental personnel, to conduct private business activities, Freind, Order 800; Pancoe, supra. As to the specific question you have posed, you are advised that Section 1103(a) of the Ethics Act would not prohibit a Legislator who is also an A from soliciting and procuring B business from governmental entities including municipalities, school districts, and authorities within or outside of the Legislator's legislative district; a regional authority that may receive yearly subsidies from the Commonwealth; and businesses and law firms that also provide Confidential Opinion 04 -010 June 22, 2004 Page 4 state lobbying services to their clients provided that the Legislator would not, in whole or in part, use his /her public position as a Legislator to solicit business from such governmental entities, regional authorities or businesses or law firms. Guloien, Opinion 90 -011. In this regard, the Legislator must exercise diligence and care to ensure that his /her status as a Legislator would not be used in the solicitation of business. Id. This Opinion is limited to addressing the applicability of Section 1103(a) of the Ethics Act. It is expressly assumed that there has been no use of authority of office for a private pecuniary benefit as prohibited by Section 1103(a) of the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /public employee and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /public employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. 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. Specifically not addressed herein is the applicability of the B laws, the State Adverse Interest Act, or the Legislative Code of Conduct. IV. CONCLUSION: A Member of the Pennsylvania General Assembly (Legislator) is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Section 1103(a) of the Ethics Act would not prohibit a Legislator who is also an A from soliciting and procuring B business from governmental entities including municipalities, school districts, and authorities within or outside of the Legislator's legislative district; a regional authority that may receive yearly subsidies from the Commonwealth; and businesses or law firms that also provide state lobbying services to their clients provided that the Legislator would not, in whole or in part, use his /her public position as a Legislator to solicit business from such governmental entities, regional authorities or businesses or law firms. The Legislator must exercise diligence and care to ensure that his /her status as a Legislator would not be used in the solicitation of business. 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 Chair