HomeMy WebLinkAbout05-001 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 -001
Re: Conflict; Public Official /Public Employee; A Public Officials; B Employees;
Occasional Responses to Unsolicited E -Mails of Political Nature; Use of
Government Equipment/ Time for Non - Governmental Purposes; De Minimis
Exclusion.
This Opinion is issued in response to your letters dated January 18, 2005, and
January 21, 2005, requesting a confidential advisory opinion from this Commission.
I. ISSUE:
Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §
1101 et seq., would impose prohibitions or restrictions upon A Public Officials and B
Employees with regard to occasionally replying, using government equipment and time, to
unsolicited e-mails of a political nature received at their government e-mail addresses,
where such use of government equipment and time would be kept to a minimum.
II. FACTUAL BASIS FOR DETERMINATION:
As [requester's official capacity], you have been authorized by the C to request a
confidential advisory opinion from this Commission regarding the ramifications under the
Ethics Act of a very limited use of government equipment and time for non - governmental
purposes. You have submitted facts that may be fairly summarized as follows.
All A Public Officials and most B Employees are assigned a computer to assist them
in the performance of their governmental duties. These individuals are also supplied with
a government e-mail address, which they use for sending and receiving e-mail messages.
In the past, such individuals have been advised that although this system is primarily for
governmental use, reasonable personal use is permitted.
A question has arisen regarding use of the system for receipt of unsolicited e-mails
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March 14, 2005
Page 2
pertaining to political matters and the occasional response to said e- mails. During the
course of the work day, some A Public Officials and some B Employees do receive the
aforementioned e-mails containing information of a political nature, and these e-mails may
request a response thereto. Because of the nature of the D and the need to respond to
these e-mails in a timely fashion, the A Public Officials or B Employees may wish to
respond to the e-mails using the government e-mail system. While these individuals have
always been cautioned against the use of government equipment for political purposes,
you state that it is extremely difficult to have a "zero" tolerance for the use of the e-mail
system for political communication.
Based upon the above, you ask whether it would be a violation of the Ethics Act for
an A Public Official or a B Employee to receive unsolicited e-mails containing political
content and to occasionally reply to such e -mails from a government computer to which the
individual would have access as a public official /public employee, where such use of
government equipment and time would be kept to a minimum.
By letter dated February 1, 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.
A Public Officials are "public officials" as defined by the Ethics Act and are subject
to the provisions of the Ethics Act.
Based upon their job duties /responsibilities (as established by objective sources
such as job descriptions, job classification specifications, and organizational charts), some
B Employees are "public employees" as defined by the Ethics Act and are subject to the
provisions of the Ethics Act. To the extent this advisory Opinion addresses the conduct of
B Employees, it is limited to addressing the conduct of those who are "public employees"
subject to 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 pertaining to conflicts of interest under the Ethics Act are
defined as follows:
§ 1102. Definitions
"Conflict" or "conflict of interest." Use by a public
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March 14, 2005
Page 3
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.
"De minimis economic impact." An economic
consequence which has an insignificant effect.
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 applying Section 1103(a) of the Ethics Act to your inquiry, it is noted that the use
of government staff, time, equipment, facilities, or property for non - governmental
purposes — including business, personal, or political purposes —is generally prohibited and
may form the basis for a violation of Section 1103(a) of the Ethics Act. See, e.q., Heck,
Order 1251, Holt, Order 1153 (business purposes); Moore, Order 1317, Meduka, Order
1277, Sullivan, Order 1245, Dovidio, Order 1202 (personal purposes); Habay, Order 1313,
Livingston, Order 1030, Rockefeller, Order 1004, Freind, Order 800 (political purposes).
This Commission has long held that government offices, facilities, equipment, and
personnel are to be used for governmental purposes and not for private, business or
campaign /re- election activities. See, Smythe, Order 1121; Rakowsky, Order 943; Eck,
Order 787; Freind, supra; Ferlo, Opinion 97 -005.
Nevertheless, you have posed a narrow question as to whether government
computers and time may be used on a very limited basis to receive and reply to unsolicited
e -mails of a political nature. We recognize that as a practical matter, a public official or
public employee might open and read such e-mail before realizing its nature. We also
recognize that it might be necessary at times to reply to such e -mail in order to curtail
further non - governmental communications to the government work place.
Although a reply to a political e-mail would clearly be a non - governmental use of
government equipment and time, you are advised that it would be possible to engage in
such conduct within strict controls that would prevent a violation of the Ethics Act from
occurring. This is because the statutory definition of "conflict" or "conflict of interest"
contains an exclusion, hereinafter referred to as the "de minimis" exclusion, which
precludes a finding of a conflict of interest as to an action having a de minimis
(insignificant) economic impact. See, Bixler v. State Ethics Commission, 847 A.2d 785
(Pa. Cmwlth. 2004); Kolb, Order 1322; Schweinsburq, Order 900. A straightforward
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March 14, 2005
Page 4
application of the de minimis exclusion to the question that you have posed necessitates
the conclusion that Section 1103(a) of the Ethics Act would not prohibit A Public Officials
and B Employees from using government equipment and time on a very limited basis to
receive and reply to unsolicited e-mails of a political nature based upon the condition that
the use of government equipment and time for non - governmental purposes would be so
strictly controlled and limited as to have a de minimis economic impact.
This Commission has determined the applicability of the de minimis exclusion on a
case -by -case basis, considering all relevant circumstances. You are cautioned that the
economic impact of an individual's conduct may aggregate over time, rather than be limited
to a particular increment of time such as a month or year. In the past, this Commission has
found amounts ranging from $2 to approximately $300 to be de minimis. See also, Bixler
v. State Ethics Commission, 847 A.2d 785 (Pa. Cmwlth. 2004).
Of course, it is never advisable for a public official or public employee to take
actions that could place him in jeopardy of violating the Ethics Act, and the particular
danger of the proposed conduct is that it could escalate beyond acceptable limitations. In
order to maintain strict controls over the proposed conduct, the A Public Officials and B
Employees who would engage in such conduct should be:
(1) Reminded of the general prohibition of Section 1103(a)
of the Ethics Act against using government staff, time,
equipment, facilities, or property for non - governmental
purposes, whether business, personal, or political
purposes;
(2) Instructed that the ability to receive unsolicited e-mails
containing political content and to occasionally reply to
such e-mails from a government computer accessed as
a public official /public employee is based upon the
condition that the use of government equipment and
time for non - governmental purposes will be so strictly
controlled and limited as to have a de minimis economic
impact;
Cautioned that the economic impact of an individual's
actions may aggregate over time rather than be limited
to a particular increment of time such as a month or
year; and
(4) Instructed to place the following notation on all reply e-
mails to unsolicited political e- mails: "Please be
advised that public officials and public employees
subject to the Public Official and Employee Ethics Act,
65 Pa.C.S. § 1101 et seq., are prohibited from
engaging in communications of a non - governmental
nature using government equipment /facilities (including
computers and e-mail addresses) or staff time. Future
communications of a political nature should not be
forwarded to the above e-mail address."
(3)
Finally, we would note that while all non - governmental uses of time and equipment
are equally risky from a strictly legal application of Section 1103(a) of the Ethics Act, a use
of government time and equipment for politically related communications may cause a
greater erosion of the public trust than, for example, occasional personal communications
with family members.
Confidential Opinion, 05 -001
March 14, 2005
Page 5
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
E or the F.
IV. CONCLUSION:
A Public Officials are "public officials" as defined by the Public Official and
Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., and are subject to the
provisions of the Ethics Act. Based upon their job duties /responsibilities, some B
Employees are "public employees" as defined by the Ethics Act and are subject to the
provisions of the Ethics Act. The use of government staff, time, equipment, facilities, or
property for non - governmental purposes — including business, personal, or political
purposes —is generally prohibited and may form the basis for a violation of Section
1103(a) of the Ethics Act. Section 1103(a) of the Ethics Act would not prohibit A Public
Officials and B Employees from using government equipment and time on a very limited
basis to receive and reply to unsolicited e-mails of a political nature based upon the
condition that the use of government equipment and time for non - governmental purposes
would be so strictly controlled and limited as to have a de minimis economic impact.
Act.
The propriety of the proposed conduct has only been addressed under the Ethics
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