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HomeMy WebLinkAbout05-002 ConfidentialOPINION OF THE COMMISSION Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Daneen E. Reese Donald M. McCurdy Paul M. Henry Raquel K. Bergen DATE DECIDED: 2/28/05 DATE MAILED: 3/14/05 05 -002 Re: Conflict; Public Official; Legislator; Pennsylvania General Assembly; Part -Time Employment; Fund Development Officer; Nonprofit Corporation; A; Federal and State Grants; Solicitations; Donations and Gifts. This Opinion is issued in response to your confidential advisory request dated February 1, 2005. I. ISSUE: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., would impose any prohibition or restrictions upon a Member of the Pennsylvania General Assembly (Legislator) with regard to engaging in part -time employment as a Fund Development Officer for a nonprofit organization, specifically an A, when the duties of the Fund Development Officer would include applying for federal and state grants and soliciting donations and gifts from public and private entities, charities and foundations, other public officials including Pennsylvania Legislators, Members of the U. S. Congress, and private individuals who might include the Legislator's constituents. II. FACTUAL BASIS FOR DETERMINATION: You have requested a confidential advisory from this Commission. In your public capacity, you are a Legislator. In addition to serving as a Legislator, you are interested in being employed on a part -time basis as the Fund Development Officer for a nonprofit organization ( "Nonprofit "), specifically an A. You have submitted facts that may be fairly summarized as follows. Prior to becoming a Nonprofit, the A was affiliated with a B. The B continues to have an ownership interest in the land and building and contributes to a trust for the operation and maintenance of the A. Currently some of the income that the Nonprofit receives consists of rental fees, which include government funds. The duties of the Fund Development Officer for the Nonprofit would include the Confidential Opinion, 05 -002 March 14, 2005 Page 2 following: applying for Federal and State grants; soliciting various forms of donations and gifts; establishing a planned giving program, including solicitation of gifts in trust and endowments; coordinating an annual giving program; and developing an Internet site for online contributions. The Fund Development Officer would solicit various forms of donations and gifts from public and private entities, charities and foundations, other public officials including Pennsylvania Legislators, Members of the U. S. Congress, and private individuals who might include constituents. You anticipate that the governmental bodies to whom solicitations would be directed would specifically include: County Board C; State Department D; State Department E; and State Commission F. Forms of solicitation would include personal meetings and direct mailings. You have identified as possible concerns your receipt of salaries as both a Legislator and the Fund Development Officer for the Nonprofit, as well as a possible perception that a portion of the proceeds solicited for the Nonprofit would include your salary as Fund Development Officer. By letter dated February 8, 2005, 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, 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, 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 requester 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 requester has truthfully disclosed all of the material facts. As a Legislator, you are a public official subject to the provisions of the Ethics 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. (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 Confidential Opinion, 05 -002 March 14, 2005 Page 3 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(a), (j). The following terms pertaining to conflicts of interest under the Ethics Act are defined 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. We note that 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. Confidential Opinion, 04 -010; 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 prospective activities as Fund Development Officer for the Nonprofit. We note that in promulgating the Ethics Act, the General Assembly specifically recognized that many public officials, including Legislators, are citizen - officials and should not be discouraged from maintaining contacts with their community through their occupations /professions. 65 Pa.C.S. § 1101.1(b). Confidential Opinion, 05 -002 March 14, 2005 Page 4 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) of the Ethics Act 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, equipment, research materials, or other property, or the use of governmental personnel, to conduct private business activities, Heck, Order 1251, Freind, Order 800; Pancoe, supra. As for the specific question that you have posed, you are advised that Section 1103(a) of the Ethics Act would not prohibit you as a Legislator from also being employed part -time as the Fund Development Officer for the Nonprofit; applying for Federal and State grants on behalf of the Nonprofit; or soliciting various forms of donations and gifts for the Nonprofit from public and private entities, charities and foundations, other public officials including Pennsylvania Legislators, Members of the U. S. Congress, and private individuals who might include your constituents, provided that you would not, in whole or in part, use your public position as a Legislator to do so. Confidential Opinion, 04 -010; Guloien, Opinion 90 -011. In this regard, you must exercise diligence and care to ensure that your status as a Legislator would not be used as to such solicitations or grant applications. 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 Legislative Code of Conduct or the G. 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 from also being employed part -time as the Fund Development Officer for a nonprofit organization ( "Nonprofit "), specifically an A; applying for Federal and State grants on behalf of the Nonprofit; or soliciting various forms of donations and gifts for the Nonprofit from public and private entities, charities and foundations, other public officials including Pennsylvania Legislators, Members of the U. S. Congress, and private individuals who might include the Legislator's constituents, provided that the Legislator would not, in whole or in part, use his /her public position as a Legislator to do so. The Legislator would have to exercise diligence and care to ensure that his /her status as a Legislator would not be used as to such solicitations or grant applications. The propriety of the proposed conduct has only been addressed under the Ethics Confidential Opinion, 05 -002 March 14, 2005 Page 5 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