HomeMy WebLinkAbout07-005 MANN2006.
OPINION OF THE COMMISSION
Honorable Jennifer L. Mann
State Representative
527 -E Main Capitol
House Box 202020
Harrisburg, PA 17120 -2020
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: 1/9/07
DATE MAILED: 1/23/07
07 -005
Dear Representative Mann:
This Opinion is issued in response to your advisory request dated November 1,
I. ISSUE: Whether the Public Official and Employee Ethics Act would impose any
prohibitions or restrictions upon a state legislator in her capacity as a public official, if, in
her private capacity, she would contract with a Pennsylvania corporation (company) to
either identify business opportunities for the company or provide consulting services to it
that would include the procurement, implementation and execution of contracts with local
government entities, educational and charitable institutions, and similar organizations.
II. FACTUAL BASIS FOR DETERMINATION: You are a Member of the House of
Representatives of the Commonwealth of Pennsylvania (State Legislator) for the 132
Legislative District. In a private capacity, you have been offered a contract to provide
consulting services to the company in the above - enumerated areas. You would receive a
fixed monthly amount of compensation during the initial one -year term of the contract.
Your proposed consulting services would include, but not be limited to, the following
activities: architecture, engineering, educational facility planning, technology /security
planning, interior design, food service planning, graphics and signage design, furniture
and equipment selection, public information services, demographic analysis, educational
specifications, procurement specifications, and value engineering and life cycle cost
analysis. Your functions would entail the advocacy of the company's interests relative to
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January 23, 2007
Page 2
the services that you would provide.
The proposed consulting contract contains a statement that the Ethics Act has
application to your conduct and sets forth certain limitations for soliciting business. Such
contractual limitations restrict contacts by you on behalf of the company with any
Commonwealth agency during your term in office and for one year thereafter. The
restrictions also extend to contacts with any local governmental body, non - profit, or for
profit entity that has applied for or received any "Legislative Initiative Grant" within the prior
two -year period.
You ask whether you may enter into a contract and receive compensation for either
identifying business opportunities or providing consulting services to the company.
By letter dated November 8, 2006, 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 January 9, 2007, 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.
Act.
As a State Legislator, you are a public official subject to the provisions of the Ethics
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
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January 23, 2007
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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.
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).
In addressing your inquiry under the Ethics Act, Section 1103(a) generally does not
prohibit public officials /public employees from having outside business activities or
employment. However, the public officials /public employees may not use the authority of
their public positions - -or confidential information obtained by being in that position - -for the
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January 23, 2007
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advancement of their own private pecuniary benefits or that of businesses with which they
are associated. Pancoe, Opinion 89 -011. Examples of conduct that would be prohibited
under Section 1103(a) would include: (1) the pursuit of a private business opportunity in
the course of public action, Metrick, Order 1037; (2) the use of governmental facilities,
such as governmental telephones, postage, equipment, research materials, or other
property, or the use of governmental personnel, to conduct private business activities,
Freind, Order 800; Pancoe, supra; and (3) the participation in an official capacity as to
matters involving the business with which the public official /public employee is associated
in his private capacity (Gorman, Order 1041; Rembold, Order 1303; Wilcox, Order 1306),
or private client(s) (Miller, Opinion 89 -024; Kannebecker, Opinion 92 -010).
If the private employer or business with which the public official /public employee is
associated or a private customer /client would have a matter pending before the
governmental body, the public official /public employee would have a conflict of interest as
to such matter. Miller, supra; Kannebecker, supra. A reasonable and legitimate
expectation that a business relationship will form may also support a finding of a conflict of
interest. Amato, Opinion 89 -002. In each instance of a conflict of interest, the public
official /public employee would be required to abstain from participation and to satisfy the
disclosure requirements of Section 1103(j) of the Ethics Act. The abstention requirement
would not be limited merely to voting, but would extend to any use of authority of office
including, but not limited to, discussing, conferring with others, and lobbying for a particular
result. Juliante, Order 809.
As to state legislators specifically, to the extent the activities of a state 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. See, Corrigan, Opinion
87 -001. Thus, Section 1103(a) of the Ethics Act would not apply to you when you are
engaged in legislative actions.
The questions that you have posed do not pertain to "legislative actions," but rather,
to your activities in private business. We note that in promulgating the Ethics Act, the
General Assembly specifically recognized that many public officials, including state
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).
However, a state legislator may not, in whole or in part, use his /her public position
as a state legislator to solicit business from such governmental entities or businesses.
Guloien, Opinion 90 -011. In this regard, the state legislator must exercise diligence and
care to ensure that his /her status as a legislator would not be used in soliciting or obtaining
business. Id.
Based upon the facts that you have submitted, Section 1103(a) of the Ethics Act
would not preclude you from engaging in private business activities, subject to the
restrictions and qualifications as noted above. See, Confidential Opinions 04 -010, 05 -002,
05 -009.
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 questions presented.
The propriety of the proposed conduct has only been addressed under the Ethics
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January 23, 2007
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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.
IV. CONCLUSION: A state legislator is a public official subject to the provisions of the
Ethics Act. Under Section 1103(a) of the Ethics Act, a state legislator may not use
governmental facilities, such as governmental telephones, postage, equipment, research
materials, or other property, or governmental personnel, to conduct private business
activities. The state legislator may not, in whole or in part, use his /her public position as a
state legislator to solicit business opportunities for himself /herself. The Ethics Act would
not preclude a state legislator from engaging in private business activities subject to the
restrictions noted above. Section 1103(a) of the Ethics Act would not apply when the state
legislator is engaged in legislative actions. Lastly, the propriety of the proposed conduct
has only been addressed under the Ethics Act.
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