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HomeMy WebLinkAbout05-009 CONFIDENTIALOPINION OF THE COMMISSION Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Paul M. Henry Raquel K. Bergen Nicholas A. Colafella Reverend Scott Pilarz DATE DECIDED: 12/12/05 DATE MAILED: 12/23/05 05 -009 Re: Conflict; Public Official /Employee; State Legislator; Business With Which Associated; A Organizations; Legislative Actions; Legislation Affecting Business Clients; Regulation of Business Clients by State Agencies. This Opinion is issued in response to your September 15, 2005, request for a confidential advisory. I. ISSUE: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., would impose any prohibitions or restrictions upon an individual upon taking office as a State Legislator where: (1) the individual would simultaneously continue to serve in his private capacity as a partner /owner of a business that provides contractual services to A Organizations; (2) Bs of the client A Organizations would be regulated by Pennsylvania state agencies; and (3) client A Organization(s) or its /their Bs could be impacted by legislation before the General Assembly. II. FACTUAL BASIS FOR DETERMINATION: As a possible candidate for a seat in the General Assembly, you have requested a confidential advisory opinion from this Commission under the following submitted facts. In your private capacity, you are a partner /owner of an unincorporated business that provides contractual services to A Organizations. Bs of the client A Organizations are regulated by Pennsylvania state agencies, such as State Department C, State Department D, State Department E and State Department F. If elected, it is your expectation that you would simultaneously be compensated by the Commonwealth of Pennsylvania as a Legislator and by the aforesaid business clients with respect to your private business activities. Confidential Opinion, 05 -009 December 23, 2005 Page 2 You pose the following questions: (1) Whether you would have a conflict of interest under the Ethics Act if as a Pennsylvania Legislator, you would introduce legislation that would clearly affect and bring financial benefit or competitive advantage to the Bs of a client A Organization? (2) Whether you would have a conflict of interest under the Ethics Act if, while serving as a Pennsylvania Legislator, you would contact a state agency and speak on behalf of a client A Organization, its Bs generally, or a specific B, with a desired outcome that would clearly affect and bring financial benefit or competitive advantage to the client A Organization or its Bs? Whether you would have a conflict of interest under the Ethics Act if as a Pennsylvania Legislator, you would advocate or otherwise attempt to influence other Members of the General Assembly in support of legislation that would benefit client A Organization(s) or its /their Bs? (3) You state your view that if a client A Organization would pay you to assist the client in dealings with the Commonwealth by introducing legislation or interacting with a state agency in ways that would benefit the client A Organization's Bs, then in effect you would be acting as a lobbyist by trying to influence the actions of legislators or by affecting a regulatory or policy action by a state agency. You state that you would be paid twice for what you would consider to be two conflicting tasks. By letter dated November 9, 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. If elected to serve in the Pennsylvania General Assembly, upon taking office as a Legislator, you would become 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 Confidential Opinion, 05 -009 December 23, 2005 Page 3 65 Pa.C.S. §§ 1103(a), (j). The following terms pertaining to conflicts of interest under the Ethics Act are defined as follows: 65 Pa.C.S. § 1102. 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. § 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. Confidential Opinion, 05 -009 December 23, 2005 Page 4 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). Thus, 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 (see, e.q., Metrick, Order 1037; Heck, Order 1251; Freind, Order 800; Gorman, Order 1041; Rembold, Order 1303; Wilcox, Order 1306) or business client(s) (see, Miller, Opinion 89 -024; Kannebecker, Opinion 92 -010). Nevertheless, 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 this Commission. Confidential Opinion, 05 -003; Confidential Opinion, 05 -002; Confidential Opinion, 04 -010; Corrigan, Opinion 87 -001. The relevant constitutional provisions are as follows: 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. Const. Art. 2 § 15 (Emphasis added). 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. Const. Art. 3, § 13. The Constitution is preeminent over the Ethics Act, and the above constitutional provisions, rather than the provisions of the Ethics Act, would control the "legislative actions" of a Legislator. You are advised that to the extent your prospective actions as a Legislator would fall within the parameters of "legislative actions," they would be constitutionally controlled, and this Commission, as a creature of statute, would lack the legal jurisdiction to address such actions under the Ethics Act. In contrast, to the extent your activities as a Legislator would not constitute "legislative actions" and would fall within the parameters of the Ethics Act, they would be subject to review by this Commission. See, e.q., Lynch, Orders 1334 and 1334 -R; Habay, Orders 1313 and 1313 -R; Freind, Orders 800 and 800 -R. Confidential Opinion, 05 -009 December 23, 2005 Page 5 We must note that given the very nature of a Legislator's work, a Legislator's conduct may often affect the Legislator himself /herself as a member of the general public or a subclass of the general public. Therefore, even when the Ethics Act would not be constitutionally preempted, there would be instances when a Legislator's conduct favoring himself /herself would not constitute a conflict of interest under the Ethics Act because the Legislator would be included within a class consisting of the general public or a true subclass consisting of more than one member and would be affected to the same degree as the other members of the class /subclass. See, Kablack, Opinion 02 -003. However, it is clear that any exception shall not exist where there is a specific benefit to the individual Legislator in violation of the Ethics Act. We shall now address the specific questions that you have posed. In response to your first and third specific questions you are advised that if, as a Pennsylvania Legislator, you would introduce legislation or advocate or otherwise attempt to influence other Members of the General Assembly in support of legislation that would financially benefit or bring a competitive advantage to one or more of your private business clients or their Bs, to the extent your activities would relate to "legislative actions" (introducing, considering, debating, voting, enacting, adopting, or approving legislation), such actions would be constitutionally controlled and exempt from the purview of the Ethics Act and this Commission. Confidential Opinion, 05 -002, supra; Confidential Opinion, 04- 010, supra; Corrigan, Opinion 87 -001, supra. In response to your second specific question you are advised that Section 1103(a) of the Ethics Act would not prohibit you while serving as a Pennsylvania Legislator from contacting a state agency and speaking on behalf of a client A Organization, its Bs generally, or a specific B, with a desired outcome that would clearly affect and bring financial benefit or competitive advantage to the client A Organization or its B(s), provided that you would not, in whole or in part, use your public position as a Legislator to do so. Confidential Opinion, 05 -002, supra; Confidential Opinion, 04 -010. For example, in the course of such private business activities, you could not use confidential information received through holding public office. You could not use not use Commonwealth facilities, such as Commonwealth telephones, postage, personnel, equipment, research materials, or other property, to conduct private business activities. You would also need to exercise diligence and care to ensure that your status as a Legislator would not be used as to such contacts with state agencies on behalf of private clients. Id. This Opinion is limited to addressing the applicability of Section 1103(a) of the Ethics Act. You are further 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 Rules of either Chamber of the Pennsylvania General Assembly. 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 Confidential Opinion, 05 -009 December 23, 2005 Page 6 Pa.C.S. § 1101 et seq. 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, even if such activities would financially benefit or bring a competitive advantage to one or more of the Legislator's private business clients or their Bs. To the extent the activities of a Legislator would not constitute "legislative actions" and would fall within the parameters of the Ethics Act, they would be subject to review by the State Ethics Commission. Even when the Ethics Act would not be constitutionally preempted, there would be instances when a Legislator's conduct favoring himself /herself would not constitute a conflict of interest under the Ethics Act pursuant to the class /subclass exception to the definition of "conflict" or "conflict of interest" at Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102, because the Legislator would be included within a class consisting of the general public or a true subclass consisting of more than one member and would be affected to the same degree as the other members of the class /subclass. Any exception shall not exist where there is a specific benefit to the individual Legislator in violation of the Ethics Act. Section 1103(a) of the Ethics Act would not prohibit a Legislator from contacting a state agency and speaking on behalf of a client A Organization, its Bs generally, or a specific B, with a desired outcome that would clearly affect and bring financial benefit or competitive advantage to the client A Organization or its B(s), provided that the Legislator would not, in whole or in part, use the public position as a Legislator to do so. The Legislator would need to exercise diligence and care to ensure that his or her status as a Legislator would not be used as to such contacts with state agencies on behalf of private clients. 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