HomeMy WebLinkAbout05-580 MillardThe Honorable David R. Millard
36 Woodside Drive
Millville, PA 17846
Dear Mr. Millard:
ADVICE OF COUNSEL
October 18, 2005
05 -580
Re: Conflict; Public Official; Member; General Assembly; State Representative; Private
Employment or Business; Board of Directors; State Fair; Firemen's Relief
Association.
This responds to your letter of September 21, 2005 by which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. § 1101 et seq., imposes any prohibition or restrictions upon a State
Representative with regard to continuing to serve as the president of a firemen's relief
association and a member of the board of directors of a state fair.
Facts: You are a State Representative for the 109 District. In addition, you
are the President of the Bloomsburg Firemen's Relief Association, and a Member of the
Bloomsburg Fair Board of Directors, serving in the capacity of Director of Arts & Crafts.
You state that the Bloomsburg Firemen's Relief Association receives state funds.
Having served on the Bloomsburg Fair Board of Directors since 1995, your present
three -year term will expire at the end of this year. You wish to seek re- election as Director
of Arts & Crafts, which is a paid position as reflected on both your taxes and your
Statement of Financial Interests.
You state that the Bloomsburg Fair is a non - profit organization. You further state
that although you are far removed from decisions concerning matching grants from the
state fair fund, you are very supportive of keeping those funds in place in the annual state
budget for all the fairs in the Commonwealth. You note that you recently established the
Fair Caucus and serve as the Chairman from the Pennsylvania House of Representatives.
Based upon the foregoing facts, you ask whether you may continue to serve as the
President of the Bloomsburg Firemen's Relief Association and a member of the Board of
Directors of the Bloomsburg Fair.
Discussion: It is initially noted that pursuant to Sections 1107(10) and (11) of the
Millard, 05 -580
October 18, 2005
Page 2
Ethics Act, 65 Pa.C.S. § §1107(10), (11), advisories are issued to the requestor based
upon the facts which the requestor has submitted. In issuing the advisory based upon the
facts which the requestor has submitted, the Commission does not engage in an
independent investigation of the facts, nor does it speculate as to facts which 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 State Representative for the 109 District, 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.
Millard, 05 -580
October 18, 2005
Page 3
Section 1103(j) of the Ethics Act provides as follows:
§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).
You are advised that Section 1103(a) of the Ethics Act does not per se prohibit
public officials /public employees from having outside business activities or employment.
However, subject to certain exceptions delineated in the definition of "conflict" or "conflict
of interest" above, Section 1103(a) of the Ethics Act ordinarily applies to prohibit the public
official /public employee from using 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. Ordinarily, a public
official /public employee with a conflict under the Ethics Act is required to abstain fully and
to fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act.
However, in Corrigan, Opinion 87 -001, the Commission addressed the question of
whether the Ethics Act would prohibit a member of the General Assembly from voting in
relation to a measure or bill pending before the Pennsylvania State Senate or the
Pennsylvania House of Representatives when such measure or bill would affect the
legislator's private interests. The Commission considered the following provisions of the
Constitution of Pennsylvania:
Privileges of Members
Section 15. The members of the General Assembly shall in
all cases, except treason, felony, violation of their oath of
office, and breach of surety of the peace, be privileged from
arrest during their attendance at the sessions of their
respective Houses and in going to and returning from the
same; and for any speech or debate in either House they
shall not be questioned in any other place.
Millard, 05 -580
October 18, 2005
Page 4
Constitution of Pennsylvania, Article 11, Section 15.
Vote Denied Members with Personal Interest
Section 13. A member who has a personal or private interest
in any measure or bill proposed or pending before the
General Assembly shall disclose the fact to the House of
which he is a member, and shall not vote thereon.
Constitution of Pennsylvania, Article 111, Section 13.
In reviewing the above constitutional provisions and pertinent case law, the
Commission held:
The activities of a member of the General Assembly
insofar as such relate to legislative actions, defined as the
introduction, consideration, debating, voting, enactment,
adoption or approval of legislation, are constitutionally
controlled. Such legislative actions are therefore exempt
from the purview of the State Ethics Act and the State Ethics
Commission.... the application of the State Ethics Act to
non - legislative activities [is] in no way affected by this
opinion.
Corrigan, Opinion 97 -001 at 4.
Based upon the above, you are advised that Section 1103(a) of the Ethics Act
would not prohibit you from continuing to serve as the President of the Bloomsburg
Firemen's Relief Association and a member of the Board of Directors of the Bloomsburg
Fair. As to these two organizations, Section 1103(a) would apply to any non - legislative
activities undertaken by you as a public official. However, to the extent your activities
would relate to "legislative actions" (introducing, considering, debating, voting, enacting,
adopting, or approving legislation), they would be constitutionally controlled and would be
exempt from the purview of the Ethics Act and the State Ethics Commission. Confidential
Opinion, 04 -010; Corrigan, Opinion 87 -001. Thus, any legislative action that you would
take with respect to the Bloomsburg Firemen's Relief Association or the Bloomsburg Fair
would be exempt from the purview of the Ethics Act.
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.
Conclusion: As a State Representative for the 109 District, you are 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 you
from continuing to serve as the President of the Bloomsburg Firemen's Relief Association
and a member of the Board of Directors of the Bloomsburg Fair. As to these two
organizations, Section 1103(a) would apply to any non - legislative activities undertaken by
you as a public official. However, to the extent your activities would relate to "legislative
actions" (introducing, considering, debating, voting, enacting, adopting, or approving
legislation), they would be constitutionally controlled and would be exempt from the
purview of the Ethics Act and the State Ethics Commission. Thus, any legislative action
that you would take with respect to the Bloomsburg Firemen's Relief Association or the
Bloomsburg Fair would be exempt from the purview of the Ethics Act.
Millard, 05 -580
October 18, 2005
Page 5
Pursuant to Section 1107(11), an Advice is a complete defense in any enforcement
proceeding initiated by the Commission, and evidence of good faith conduct in any other
civil or criminal proceeding, provided the requestor has disclosed truthfully all the material
facts and committed the acts complained of in reliance on the Advice given.
This letter is a public record and will be made available as such.
Finally, if you disagree with this Advice or if you have any reason to
challenge same, you may appeal the Advice to the full Commission. A
personal appearance before the Commission will be scheduled and a
formal Opinion will be issued by the Commission.
Any such appeal must be in writing and must be actually received at
the Commission within thirty (30) days of the date of this Advice pursuant
to 51 Pa. Code §13.2(h). The appeal may be received at the Commission
by hand delivery, United States mail, delivery service, or by FAX
transmission (717- 787 - 0806). Failure to file such an appeal at the
Commission within thirty (30) days may result in the dismissal of the
appeal.
Sincerely,
Vincent J. Dopko
Chief Counsel