HomeMy WebLinkAbout05-003 MooreOPINION OF THE COMMISSION
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Daneen E. Reese
Donald M. McCurdy
Paul M. Henry
Nicholas A. Colafella
DATE DECIDED: 3/24/05
DATE MAILED: 3/31/05
05 -003
Reizdan B. Moore, Esquire
Chief Counsel- Democratic Caucus
619 Main Capitol Building
Harrisburg, PA 17120 -2020
Re: Conflict; Public Official; State Representative; Legislative District Office; Lease;
Nonprofit Organization; Legislative Initiative Grant; Private Pecuniary Benefit.
Dear Mr. Moore:
This Opinion is issued in response to your advisory request dated January 12,
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 State Representative
with regard to leasing legislative office space at market rental rates from a nonprofit social
service organization, when the office space was renovated through a Legislative Initiative
Grant supported by the Representative.
II. FACTUAL BASIS FOR DETERMINATION:
As Chief Counsel of the Democratic Caucus of the Pennsylvania House of
Representatives, you request an advisory opinion from this Commission on behalf of a
State Representative (hereinafter, the Representative ") who is a member of the Caucus.
You have submitted facts that may be fairly summarized as follows.
The Representative is interested in leasing office space for his legislative district
office from a certain nonprofit social service organization (hereinafter the Nonprofit "). The
Nonprofit previously renovated the office space as part of a community revitalization effort,
using a Legislative Initiative Grant supported by the Representative. Specifically, the
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March 31, 2005
Page 2
board of directors of the Nonprofit requested $800,000 in state funds from the Capital
Redevelopment Assistance Fund to help alleviate the project's funding shortfall. The
Representative wrote letters of support and became an advocate for approval of the
request. Approximately four months later, the state funds were provided for the project.
The Representative now desires to locate his legislative district office in a part of
the space renovated by the Nonprofit. You state that the lease would result from an arms -
length negotiation. The Representative would pay the market rental rate established by
the Nonprofit. The Representative would not receive any preferential, discounted, or more
favorable rates than other tenants in the renovated space. The lease would occur under
the same terms and conditions customarily provided in legislative district office leases for
Members of the House of Representatives.
You further state that neither the Representative nor any member of his immediate
family has any financial interest in the Nonprofit, and neither the Representative nor any
member of his immediate family is employed by the Nonprofit.
Finally, you state that there was no discussion regarding the Representative's
potential leasing of space from the Nonprofit as consideration of or in exchange for the
Representative's support of the Nonprofit's request for state financial assistance.
By letter dated March 9, 2005, you were notified of the date, time and location of the
public meeting at which your request would be considered.
At the public meeting on March 24, 2005, you appeared for the purpose of
answering any questions of this Commission.
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.
The Representative is 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
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March 31, 2005
Page 3
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(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.
"Immediate family." A parent, spouse, child, brother
or sister.
"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.
"Financial interest." Any financial interest in a legal
entity engaged in business for profit which comprises more
than 5% of the equity of the business or more than 5% of the
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March 31, 2005
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assets of the economic interest in indebtedness.
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.
Subject to certain voting conflict exceptions, Section 1103(j) of the Ethics Act
requires a public official /public employee with a conflict of interest 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.
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.
In applying Section 1103(a) of the Ethics Act to the instant matter, there is no basis
for concluding that the Representative would have a conflict of interest under the Ethics
Act as a result of leasing a portion of the aforesaid renovated office space from the
Nonprofit. This is because conflicts of interest under the Ethics Act are based upon the
use of the authority of the public position or confidential information received by being in
the public position for a prohibited private pecuniary (financial) benefit to the public official
himself, a member of his immediate family, or a business with which he or a member of his
immediate family is associated. Although the office space in question was renovated
through a Legislative Initiative Grant supported by the Representative, the submitted facts
do not suggest any basis for concluding that the Representative's subsequent leasing of
such office space would result in a prohibited private pecuniary benefit contrary to Section
1103(a) of the Ethics Act.
Therefore, Section 1103(a) of the Ethics Act would not prohibit the Representative
from leasing from the Nonprofit a portion of the aforesaid renovated office space for the
Representative's legislative district office, at market rental rates and under the same terms
and conditions customarily provided in legislative district office leases for Members of the
House of Representatives, conditioned upon the assumption that neither the
Representative, any member of his immediate family, nor any business with which he or a
member of his immediate family is associated would receive any private pecuniary benefit
as a result of the lease.
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 House Rules.
IV. CONCLUSION:
A Member of the Pennsylvania House of Representatives ( "Representative ") 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. Where a nonprofit social service organization
( "the Nonprofit ") has renovated office space through a Legislative Initiative Grant
supported by the Representative, Section 1103(a) of the Ethics Act would not prohibit the
Representative from leasing from the Nonprofit a portion of such renovated office space for
the Representative's legislative district office, at market rental rates and under the same
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March 31, 2005
Page 5
terms and conditions customarily provided in legislative district office leases for Members
of the House of Representatives, conditioned upon the assumption that neither the
Representative, any member of his immediate family, nor any business with which he or a
member of his immediate family is associated would receive any private pecuniary benefit
as a result of the lease.
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