HomeMy WebLinkAbout07-015 FEESEOPINION 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
DATE DECIDED: 6/12/07
DATE MAILED: 6/29/07
Brett O. Feese, Esquire
Chief Counsel to the House Republican Caucus
House of Representatives
Suite B -6, Main Capitol
P.O. Box 202228
Harrisburg, PA 17120 -2228
07 -015
Dear Mr. Feese:
This Opinion is issued in response to your advisory request dated May 10, 2007.
I. ISSUE:
Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §
1101 et seq., would require a state legislator to disclose a $500 gift certificate as a gift on
his Statement of Financial Interests where the gift certificate was presented to the state
legislator by a coalition of trade organizations comprised of fourteen separate
organizations, not all of the organizations in the coalition contributed to the gift, and none
of the organizations contributed in excess of $250 toward the gift; and, to the extent
disclosure would be required, whether the source(s) of the gift would be the trade coalition,
each trade organization comprising the coalition, or only the trade organizations that
contributed to the gift.
II. FACTUAL BASIS FOR DETERMINATION:
As Chief Counsel to the House Republican Caucus, you request an advisory on
behalf of a Caucus Member (hereinafter "Member "). You have submitted the following
facts.
The Member previously served as Chairman of a standing committee of the
Pennsylvania House of Representatives. In 2007, in recognition of the Member's service,
a coalition of trade organizations (hereinafter "Coalition ") presented him with a $500 gift
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June 29, 2007
Page 2
certificate. The Coalition is comprised of 14 separate organizations. All of the
organizations attended the presentation, although not all of the organizations contributed
to the gift. The Member has been informed that of the organizations that contributed, none
gave in excess of $250.
You pose the following questions:
(1) Whether the Member is required to report the gift on his Statement of
Financial Interests, given that no trade organization contributed in
excess of $250; and
(2) If the Member is required to report the gift, whether the Member
should list as the donor the name of the Coalition, each trade
organization comprising the Coalition, or only the trade organizations
that contributed to the gift.
By letter dated May 15, 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
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.
We note that the submitted facts do not specifically identify the nature of the items
for which the gift certificate may be redeemed. However, the submitted facts do reference
the $250 threshold applicable to gifts. Therefore, based upon the submitted facts, this
advisory Opinion assumes that to the extent the gift certificate would be reportable by the
Member, it would be reportable as a "gift" rather than as transportation, lodging or
hospitality received in connection with public office.
A Member of the Pennsylvania House of Representatives is a public official subject
to the provisions of the Ethics Act and specifically the financial disclosure requirements of
Sections 1104 and 1105 of the Ethics Act.
Section 1104(a) of the Ethics Act provides that each public official /public employee
must file a Statement of Financial Interests for the preceding calendar year, each year that
he holds the position and the year after he leaves it.
Section 1105(b)(6) of the Ethics Act requires the filer to disclose on the Statement
of Financial Interests the name and address of the source and the amount of any gift or
gifts valued in the aggregate at $250 or more and the circumstances of each gift:
§ 1105. Statements of financial interests
(b) Required information. - -The statement shall include
the following information for the prior calendar year with
regard to the person required to file the statement:
(6) The name and address of the source and the
amount of any gift or gifts valued in the
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June 29, 2007
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aggregate at $250 or more and the
circumstances of each gift. This paragraph shall
not apply to a gift or gifts received from a
spouse, parent, parent by marriage, sibling,
child, grandchild, other family member or friend
when the circumstances make it clear that the
motivation for the action was a personal or family
relationship. However, for the purposes of this
paragraph, the term "friend" shall not include a
registered lobbyist or an employee of a
registered lobbyist.
65 Pa.C.S. § 1105(b)(6).
The Ethics Act defines the term "gift" as that term is defined in Section 1303 -A of
Pennsylvania's lobbying disclosure law ( "Lobbying Disclosure Law "), 65 Pa.C.S. § 1303 -A
(see, 65 Pa.C.S. § 1102). The definition of "gift" is as follows:
§ 1303 -A. Definitions.
"Gift." Anything which is received without consideration
of equal or greater value. The term shall not include a political
contribution otherwise reportable as required by law or a
commercially reasonable loan made in the ordinary course of
business. The term shall not include hospitality, transportation
or lodging.
65 Pa.C.S. § 1303 -A.
In considering your inquiry, we initially determine that it was the legislative intent for
the Ethics Act and the Lobbying Disclosure Law to be interpreted consistently to the extent
possible. Such legislative intent is indicated by certain changes from the prior Lobbying
Disclosure Act (Act 93 of 1998, Chapter 13) to be consistent with the Ethics Act, such as
the consistent use of certain definitions and reporting thresholds between the two acts, as
well as the expressed intent in the legislative debate that reporting under the two laws
serve as a "check- and - balance" system:
The bill has checks and balances by providing for the
first time that the thresholds for reporting gifts or entertainment
or travel involving any State official is the same between the
ethics law and the lobbying law. This will result in that
anything that you are obliged to report, a lobbyist will be
obliged to report and vice versa. When you have that sort of
checks and balances, it inspires good voluntary action to
ensure that you are following the rules.
But if that is not enough, we also have checks and
balances behind that....
Legislative Journal of House, 2006 Session, No. 51 at 2378 (Comments of Representative
Maher, prime sponsor of House Bill 700, moments before the bill's passage by a vote of
194 -1 in the House).
We note that the Lobbying Disclosure Law contemplates factual scenarios such as
the one that you have presented. Indeed, under the Lobbying Disclosure Law, an
association as a principal may provide gifts to State officials or employees in the course of
lobbying activity. See, 65 Pa.C.S. § 1303 -A (definitions of "lobbying" and "principal ").
Feese, 07 -015
June 29, 2007
Page 4
When such an association files an expense report under the Lobbying Disclosure Law
disclosing reportable gifts provided by the association to State officials or employees, the
association is generally not required to identify its individual members. See, 65 Pa.C.S. §
1305 -A. However, the association would be required to disclose sources —which could
include members —that contributed more than 10% of the total resources that the
association received during the reporting period. 65 Pa.C.S. § 1305- A(b)(5).
The Lobbying Disclosure Law does not define the term "association," but the
Statutory Construction Act defines the term (1 Pa.C.S. § 1991), such that for our purposes,
the applicable definition is from the Associations Code and encompasses a coalition:
§ 102. Definitions
"ASSOCIATION." A corporation, a partnership, a
limited liability company, a business trust or two or more
persons associated in a common enterprise or undertaking.
The term does not include a testamentary trust or an inter
vivos trust as defined in 20 Pa.C.S. § 711(3) (relating to
mandatory exercise of jurisdiction through orphans' court
division in general).
15 Pa.C.S. § 102 (Emphasis added).
Keeping the above observations in mind, we note that under the submitted facts, the
Coalition itself presented the Member with the $500 gift certificate. Some Coalition
Members made contributions /donations to the Coalition toward the cost of the gift
certificate, but it was the Coalition itself that provided the gift certificate to the Member as a
gift from the Coalition.
Therefore, under the submitted facts, the Member would be required to disclose the
Coalition as the source of the $500 gift certificate on his Statement of Financial Interests.
The Member would not be required to list individual Coalition members as sources of the
gift certificate, because the gift certificate was provided by the Coalition, not individual
Coalition members. Pursuant to Section 1105(b)(6) of the Ethics Act, the Member's
disclosure as to the Coalition would have to include the name and address of the Coalition;
the amount of any gift or gifts received from the Coalition valued in the aggregate at $250
or more, including but not limited to the $500 gift certificate; and the circumstances of each
gift.
The propriety of the proposed conduct has only been addressed under the Ethics
Act, with consideration given to the relevant provisions of the Lobbying Disclosure Law.
The applicability of any other statute, code, ordinance, regulation or other code of conduct
has not been considered.
IV. CONCLUSION:
A Member of the Pennsylvania House of Representatives 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., and specifically the financial disclosure requirements of Sections 1104 and
1105 of the Ethics Act. It was the legislative intent for the Ethics Act and Pennsylvania's
lobbying disclosure law ( "Lobbying Disclosure Law "), 65 Pa.C.S. § 1301 -A et seq., to be
interpreted consistently to the extent possible. Under the submitted facts that a coalition of
trade organizations (hereinafter "Coalition ") presented the Member with a $500 gift
certificate, with some Coalition Members making contributions /donations to the Coalition
toward the cost of the gift certificate, but with the Coalition itself providing the gift certificate
to the Member as a gift from the Coalition, the Member would be required to disclose the
Coalition as the source of the $500 gift certificate on his Statement of Financial Interests.
Feese, 07 -015
June 29, 2007
Page 5
The Member would not be required to list individual Coalition members as sources of the
gift certificate, because the gift certificate was provided by the Coalition, not individual
Coalition members. Pursuant to Section 1105(b)(6) of the Ethics Act, the Member's
disclosure as to the Coalition would have to include the name and address of the Coalition;
the amount of any gift or gifts received from the Coalition valued in the aggregate at $250
or more, including but not limited to the $500 gift certificate; and the circumstances of each
gift.
The propriety of the proposed conduct has only been addressed under the Ethics
Act, with consideration given to the relevant provisions of the Lobbying Disclosure Law.
Pursuant to Section 1107(10) of the Ethics Act, 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