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Home My WebLink About07-008 PRESTONOPINION OF THE COMMISSION Honorable Joseph Preston, Jr. State Representative House of Representatives Room 332 Irvis Office Building Harrisburg, PA 17120 -0028 2007. I. ISSUE: Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Paul M. Henry Raquel K. Bergen Nicholas A. Colafella DATE DECIDED: 3/28/07 DATE MAILED: 4/11/07 07 -008 Dear Representative Preston: This Opinion is issued in response to your advisory request dated February 20, Whether the Public Official and Employee Ethics Act would impose any prohibitions or restrictions upon a state legislator in his capacity as a public official if, in his private capacity, he would enter into a contract with an engineering firm that has dealings with municipal government(s). II. FACTUAL BASIS FOR DETERMINATION: You are a Member of the House of Repre of the Commonwealth of Pennsylvania (State Legislator) representing the 24 t Legislative District. You ask whether you would transgress the Ethics Act if, in your private capacity, you would enter into a contract with an engineering firm that has dealings with municipal government(s). By letter dated February 22, 2007, you were notified of the date, time and location of the public 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 Preston, 07 -008 April 11, 2007 Page 2 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 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. Preston, 07 -008 April 11, 2007 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). 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, a public official /public employee may not use the authority of the public position - -or confidential information obtained by being in that position - -for the advancement of the public official's /public employee's own private pecuniary benefit or that of a business with which he or she is 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. Preston, 07 -008 April 11, 2007 Page 4 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 question that you have posed does 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). See, e.g., Mann, Opinion 07 -005; Confidential Opinion, 05 -009. 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 would have to exercise diligence and care to ensure that his /her status as a legislator would not be used in soliciting or obtaining business. Id.; cf., Confidential Opinion, 05 -002; Confidential Opinion, 05 -009. 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 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. Pursuant to 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 Preston, 07 -008 April 11, 2007 Page 5 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