HomeMy WebLinkAbout06-506 CONFIDENTIALADVICE OF COUNSEL
January 11, 2006
06 -506
Re: Conflict; Public Official /Employee; Legislator; General Assembly; Private
Business Activities; Legislative Actions.
This responds to your letter of December 16, 2005, by which you requested a
confidential advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa. .S. § 1101 et seq., presents any prohibition or restrictions upon a member of the
General Assembly who is also an attorney with regard to: (1) entering into a contractual
relationship with a corporation (the "Corporation ") to meet and discuss with legislators
from other states the issue of B; and (2) discussing or voting on proposed legislation
similar to prior enacted legislation that C when: (a) the Corporation has, in the past,
worked through its lobbyists to have the prior legislation enacted; and (b) the
Corporation has offered to contract with the Legislator or the Legislator's law firm to
meet and discuss with legislators from other states the issue of B.
Facts: As A, you seek an advisory on behalf of a member of the General
Assembly (the "Legislator") who is also a member of the Pennsylvania Bar Association.
You state that a corporation doing business in Pennsylvania (the "Corporation ") has
offered a contract to the Legislator or the law firm with which the Legislator is associated
to meet and discuss with legislators from other states the issue of B.
You state that the Corporation has lobbyists who lobby the Pennsylvania General
Assembly. In the past, the Corporation has worked through its lobbyists to have
legislation enacted that would C. You state that this legislation was passed, signed into
law, but subsequently held unconstitutional in the Pennsylvania courts.
You note that at the time the legislation was enacted into law, the Legislator was
a former member of a law firm that represented the Corporation. The Legislator spoke
in favor of and voted on the legislation only after receiving a ruling from the presiding
officer that he was permitted to do so under the rules adopted by the Legislator's
legislative body pursuant to its authority under Article III, § 13 of the Pennsylvania
Constitution.
You state that it is widely rumored that similar legislation will be brought up again
for a vote in the General Assembly.
Confidential Advice, 06 -506
January 11, 2006
Page 2
Based upon the foregoing facts, you seek an advisory from the State Ethics
Commission as to whether the Legislator would be permitted under the Ethics Act to
enter a contractual relationship with the Corporation to meet and discuss with legislators
from other states the issue of B.
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, the 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 Member of the Pennsylvania General Assembly, the Legislator on whose
behalf you seek this advisory is 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.
Confidential Advice, 06 -506
January 11, 2006
Page 3
"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.
In addition, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no
person shall offer to a public official /employee anything of monetary value and no public
official /employee shall solicit or accept anything of monetary value based upon the
understanding that the vote, official action, or judgment of the public official /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.
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).
The question as to whether the Legislator would be permitted under the Ethics
Act to enter into a contractual relationship with the Corporation to meet and discuss with
legislators from other states the issue of B is beyond the jurisdiction of the State Ethics
Commission. The jurisdiction of the State Ethics Commission is generally limited to
questions relating to whether a public official /public employee is using the authority of
office /employment or confidential information for a 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. In that the question that you have posed does not
relate to the conduct of the Legislator in his public capacity, the question is beyond the
Commission's jurisdiction.
Confidential Advice, 06 -506
January 11, 2006
Page 4
With respect to the question of whether the Legislator would be permitted under
the Ethics Act to discuss or vote on proposed legislation that is similar to prior enacted
legislation that C when: (1) the Corporation has, in the past, worked through its
lobbyists to have the prior legislation enacted; and (2) the Corporation has offered to
contract with the Legislator or the Legislator's law firm to meet and discuss with
legislators from other states the issue of B, you are advised as follows. Section 1103(a)
of the Ethics Act ordinarily applies to prohibit a 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 or business client(s). 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.
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 87 -001 at 4.
Based upon the above, you are advised that Section 1103(a) of the Ethics Act
would apply to any non - legislative activities undertaken by the Legislator as a public
Confidential Advice, 06 -506
January 11, 2006
Page 5
official. However, to the extent the Legislator's 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, supra; Confidential Opinion, 05 -009. Thus, any legislative action that the
Legislator would take with respect to proposed legislation that is similar to prior enacted
legislation C 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 Member of the Pennsylvania General Assembly, the Legislator
on whose behalf you seek this advisory 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.
The question as to whether the Legislator would be permitted under the Ethics Act to
enter into a contractual relationship with the Corporation to meet and discuss with
legislators from other states the issue of B is beyond the jurisdiction of the State Ethics
Commission. Any legislative action that the Legislator would take with respect to
proposed legislation that is similar to prior enacted legislation C would be exempt from
the purview of the Ethics Act. Lastly, the propriety of the proposed conduct has only
been addressed under the Ethics Act.
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 requester 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