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HomeMy WebLinkAbout91-007 NoyeThe Honorable Fred C. Noye Room 417 House Office Building Harrisburg, PA 17120 Dear Representative Noye: 1991. I. Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Robert W. Brown, Chair Dennis C. Harrington, Vice Chair James M. Howley Daneen E. Reese Roy W. Wilt Austin M. Lee James P. Gallagher DATE DECIDED: August 23, 1991 DATE MAILED: September 3, 1991 91 -007 RE: Public Official, General Assembly, Representative, American Legislative Exchange Council, Governmental Body, Travel, Transportation, Lodging, Hospitality, FIS This Opinion is issued in response to your request of July 1, Whether a member of the General Assembly under the Public Official and Employee Ethics Law is required to list on his Statement of- Financial Interests payments received for travelling as a member and officer of the American Legislative Exchange Council; the travel and accommodations provided for speaking engagements; and lastly, the travel for the annual meeting in Seattle as to individual sponsors or contributors who sponsor receptions for the incoming National Chairman of the American Legislative Exchange Council. II. Factual Basis for Determination: You are a member of the House of Representatives of the Commonwealth of Pennsylvania. In addition, you are the incoming National Chairman of the American Legislative Exchange Council (ALEC) which is a national organization of state legislators. As an officer for ALEC, you are often requested to travel on business for the organization and to be available for many speaking engagements. You pose three inquiries under the Ethics Law: 1. When traveling for ALEC on assignment, do you need to report on your FIS, as a gift or otherwise, the trips and accommodations which are often complimentary; 2. On speaking engagements do you need to report the travel and accommodations which are provided; and 3. Lastly, do you need to report on your FIS various sponsors or contributors who sponsor receptions which are being provided for you as incoming National Chairman at the annual meeting in Seattle, when the sponsors contribute to ALEC which is a 501(3)(c), and said sponsors are listed in the program for the events. You also attach to your request letter a photocopy of a letter from Margaret A. Moran of the American Petroleum Institute dated July 2, 1991 which is an invitation to you to participate in a tour sponsored by the American Petroleum Institute (API) and the Alaska Oil and Gas Association (AOGA), said tour encompassing the petroleum industry's operations at Prudhoe Bay and the Arctic National Wildlife Refuge (ANWR) from July 28 - 30, 1991. After noting your interest in national energy issues and your participation in national and regional forums, the letter recites that a first hand look at the oil /gas operations on the North slope would be valuable. People from the member companies operating in Alaska as well as Ms. Moran serve as hosts and tour guides to show the operating Prudhoe Bay oil fields and coastal plain areas that have been proposed for exploration activities. Ms. Moran indicates that hotel accommodations and meals would be provided and that round -trip airfare would be fully reimbursed. Additional reception and briefing would be provided on Sunday July 28 in Anchorage. The letter recites that the planned itinerary would include a tour of company operations in Prudhoe Bay and a helicopter trip to the Arctic National Wildlife Refuge. The letter directs that due to various ethics and lobbying reporting laws, API requires an advisory opinion from the appropriate state authority that the legislators may be reimbursed for the trip and whether such expenses would have to be reported as lobbying expenses. In an addendum to the letter, it is noted that the trip is limited to thirteen state legislators due to the available seats the helicopter for the ANWR portion of the trip although other invitees are state legislators who are active in different public policy groups. Spouses will not be accommodated on the trip due to space limitations. The remainder of the addendum outlines the specifics of the itinerary as well,as advising as to security requirements and suitable clothing for the tour. You conclude by requesting advice as to what you have to file and what would be acceptable for filing purposes as to the Statements of Financial Interests. III. Discussion: As a Representative for the General Assembly of the Commonwealth of Pennsylvania you are a public official as that term is defined under the Public Official and Employee Ethics Law and as such you are subject to the provisions of that Law. The Ethics Law disclosure requirements regarding any payment for or reimbursement of actual expenses for transportation, lodging and /or hospitality received in connection with public office or employment are set forth at Section 5, which provides in pertinent part: Section 5. Statement of financial interests (a) The statement of financial interests filed pursuant to this act shall be on a form prescribed by the commission. All information requested on the statement shall be provided to the best of the knowledge, information and belief of the person required to file and shall be signed under oath or equivalent affirmation. (b) The statement shall include the following information for the prior calendar year with regard to the person required to file the statement. (7)(i) The name and address of the source and the amount of any payment for or reimbursement of actual expenses for transportation and lodging or hospitality received in connection with public office or employment where such actual expenses for transportation and lodging or hospitality exceed $500 in the course of a single occurrence. This paragraph shall not apply to expenses reimbursed by a governmental body, or to expenses reimbursed by an organization or association of public officials or employees of political subdivisions which the public official or employee serves in an official capacity. (ii) This paragraph shall not be applied retroactively. 65 P.S. §405(a), (b)(7)(i). Preliminarily, we note that we will confine ourselves to the parameters of the questions asked, namely, the reporting requirements of Section 5(b)(7) of the Ethics Law, under the facts presented above. Since you are a member and the incoming National Chairman of ALEC, we must initially determine whether ALEC is a governmental body. The foregoing threshold question must be resolved since Section 5(b)(7) excludes from the disclosure requirements expenses reimbursed by a governmental body and expenses reimbursed by organizations /associations of public officials /employees of political subdivisions wherein the public official /employee serves in an official capacity. The term "governmental body" is defined under the Ethics Law as follows: Section 2. Definitions "Governmental body." Any department, authority, commission, committee, council, board, bureau, division, service, office, officer, administration, legislative body, or other establishment in the Executive, Legislative or Judicial Branch of a state, a nation or a political subdivision thereof or any agency performing a governmental function. 65 P.S. §402. Although detailed information is not provided as to ALEC, it is sufficient to note that it is described as a national organization of state legislators and is a 501(3)(c). As such, ALEC is not encompassed within the definition of governmental body. Furthermore, ALEC would not be considered within the exclusion of Section 5(b)(7) as an organization /association of public officials /employees of political subdivisions. Legislators are public officials within the General Assembly which is not a political subdivision as defined by the Ethics Law. Accordingly, any such travel expenses received from ALEC would have to be reported on the Statement of Financial Interests. Turning now to the question as to exactly what must be reported, Section 5(b)(7) of the Ethics Law provides that the name and address of the source as wej,l,as the amount of any payment or reimbursement of actual expenses for transportation, lodging, or hospitality received in connection with public office must be reported where the actual expenses exceed $500.00 as to a single occurrence. Thus, if you are travelling for ALEC on assignment, and if the transportation, lodging or hospitality together exceed $500.00 for the single occurrence, you are required to report that on your annual Financial Interest Statement. The specific reporting would require the name and address of ALEC which would be providing the travel expenses or reimbursement as well the amount of such expenses. As to your second inquiry, the fact that you would be engaging in speaking activities would not entail a different result since you note the travel and accommodations would be provided by ALEC. As noted above, you would have to list the name and address of ALEC and the amount of the payment, provided you received in excess of $500.00 for the single occurrence speaking engagement. As to your third inquiry, you would have to report said travel expenses for your annual meeting in Seattle and list the name and address of ALEC as the source of your travel expenses, provided the $500.00 threshold amount is exceeded as to the single occurrence. As for other sponsors and contributors who provide receptions at said annual meeting in Seattle, the factual circumstances surrounding the sponsorships have not been provided and so we shall address each of the three potential alternatives. First, if the sponsorships are as a result of contributions to ALEC which are in no way earmarked or designated as to how they are to be spent, with ALEC determining as a result of its sole discretion to use such funds for the receptions you have described, you would disclose the name and address of ALEC as the source as well as the amount of such hospitality provided to you. Second, if the sponsorships are through earmarked contributions to ALEC, you would be required to report the name and address of such sponsors or contributors and the amount of the hospitality provided to you. This is because ALEC would be serving only as a conduit for the payments. If we were to hold that only ALEC needed to be disclosed as the source under these circumstances, such a decision would be contrary to the Preamble of the Ethics Law which requires a liberal construction for complete financial disclosure; further, such a construction would not provide for the disclosure of the true contributors. The third potential alternative would arise if the sponsors and contributors pay for the hospitality independently. Obviously, under these circumstances, you would likewise be required to report the names and addresses of such sponsors and contributors and the amount of the hospitality provided to you. Turning to the letter of invitation from API dated July 2, 1991, you have not posed any particular question under the Ethics Law regarding that particular invitation. However, since you have attached that invitation, we would note that under the parameters outlined above, you would be required to list API and the Alaska Oil and Gas Association which are co- sponsors of the trip together with their addresses and the amount of payments made which we would assume clearly would exceed the $500.00 threshold requirement of Section 5(b)(7). Lastly, we note that we have only addressed the questions posed which relate to the reporting requirements of such travel expenses. In addition, specifically not addressed is the applicability of the Legislative Code of Conduct or any reporting requirements for lobbyists. IV. Conclusion: A member of the General Assembly of the Commonwealth of Pennsylvania is a public official subject to the provisions of the Ethics Law. Section 5(b)(7) of the Ethics Law requires a member of the General Assembly to list the name and address of the source, and the amount of payments or reimbursements for expenses as to transportation, lodging and hospitality which exceed $500.00 in the course of a single occurrence. Travel expenses and accommodations for assigned travel and /or speaking engagements as to the American Legislative Exchange Council must be reported since the Council is not within the exclusionary language of Section 5(b)(7) of the Ethics Law. In addition, any other transportation, lodging or hospitality provided by sponsors or contributors at ALEC activities would have to be disclosed as set forth above provided the $500.00 threshold requirement of Section 5(b)(7) is exceeded. Pursuant to Section 7(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. such. This letter is a public record and will be made available as Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. By the Commission, r /) Dennis C. Vice Chair Commissioner Roy W. Wilt dissents.