STATE ETHICS COMMISSION
Adoption of Guidelines Under the State Military College Legislative Appointment Initiative Program Act
[43 Pa.B. 1687]
[Saturday, March 23, 2013]
On March 8, 2013, the State Ethics Commission (Commission) adopted the following guidelines under the State Military College Legislative Appointment Initiative Program Act (act) (24 P. S. §§ 7401—7404).
Guidelines for the Establishment and Function of State Military College Selection Committees Under the State Military College Legislative Appointment Initiative Program Act
Under the act, which establishes the State Military College Legislative Appointment Initiative Program (Program), each member of the Pennsylvania General Assembly (Legislator) may annually appoint an eligible student who resides in the Legislator's legislative district for guaranteed initial enrollment in a State military college. See 24 P. S. § 7403(c). A Legislator's appointment under the Program may only be made at the recommendation of a State military college selection committee (Selection Committee) established by the Legislator to serve the legislative district of the Legislator. 24 P. S. § 7403(b) and (c).
The following guidelines have been developed by the Commission in accordance with the act to help ensure that the Selection Committees and legislative appointments do not transgress the Public Official and Employee Ethics Act (Ethics Act) (65 Pa.C.S. §§ 1101—1113) or the Legislative Code of Ethics (Legislative Code) (46 P. S. §§ 143.1—143.8). See 24 P. S. § 7403(b).
B. General Guidelines
1. A Legislator is not required to participate in the Program. Participation in the Program is voluntary.
2. A Legislator who chooses to participate in the Program should promptly notify the State military college of his intention each year.
3. Student applicants shall meet the eligibility requirements in 24 P. S. § 7403(e), which include conditions placed upon the applicant by the State military college.
4. Legislators are public officials subject to the Ethics Act and are also subject to the Legislative Code.
5. Legislators shall avoid conflicts of interest and other violations of the Ethics Act.
6. Section 1103(a) of the Ethics Act (65 Pa.C.S. § 1103(a)), pertaining to conflict of interest, would prohibit a Legislator from using the authority of his public position or confidential information received by holding the public position for the private pecuniary benefit of himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. ''Immediate family'' is defined as a parent, spouse, child, brother or sister. See 65 Pa.C.S. § 1102. Scholarship assistance from the State military college is an example of a pecuniary benefit. As a result, a Legislator would be prohibited from appointing a member of his immediate family for guaranteed enrollment in a State military college.
7. Legislators shall avoid ''improper influence'' relating to the Program. Sections 1103(b) and 1103(c) of the Ethics Act (65 Pa.C.S. §§ 1103(b) and (c)), pertaining to ''improper influence,'' provide in part that no person shall offer or give to a public official or public employee anything of monetary value and no public official or 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 or public employee would be influenced thereby. The Legislative Code prohibits similar conduct (see 46 P. S. §§ 143.4 and 143.5) and prohibits a Legislator from using for private gain—or disclosing to others for their use for private gain—information not available to the public at large and acquired solely by virtue of the Legislator's position (see 46 P. S. §§ 143.5(f) and (g)).
a. Depending upon the facts, a violation of the Ethics Act or the Legislative Code may occur if a Legislator solicits or receives something of monetary value for: (i) appointing an individual to a Selection Committee; (ii) appointing an eligible student for guaranteed enrollment; or (iii) doing anything else connected with the Program.
b. A Legislator may not assert influence over the decisions of a Selection Committee and may not offer any specific recommendations or endorsements for a Program applicant.
8. Members of Selection Committees are not public officials subject to the Ethics Act.1 However, to maintain the integrity of the Program and public confidence in the administration of the Program, Selection Committee members should not:
a. Serve, or continue to serve, on a Selection Committee that receives an application for evaluation from an eligible student or potential eligible student who is a member of his or her immediate family.
b. Serve on a Selection Committee if he is an immediate family member of the appointing Legislator.
c. Serve, or continue to serve, on a Selection Committee if he is an employee or member of the General Assembly.
d. Serve, or continue to serve, on a Selection Committee if he is the treasurer or other officer who shall be included in a Legislator's registration statement under section 1624(b)(2) and (3) of the act of June 3, 1937 (P. L. 1333, No. 320), known as the Pennsylvania Election Code, for the appointing Legislator's political committee or political action committee.
e. Serve, or continue to serve, on a Selection Committee if he is a ''lobbyist'' or ''principal'' subject to the registration/reporting requirements of Pennsylvania's lobbying disclosure law (65 Pa.C.S. §§ 13A01—13A11).
9. A Legislator may seek an advisory opinion from the Commission as to whether his proposed future conduct would violate the Ethics Act. The Commission does not issue advisory opinions as to past conduct.
10. It is recommended that those with questions as to the Legislative Code obtain legal advice in that regard. The Commission does not have jurisdiction to issue advisory opinions under the Legislative Code.
C. Specific Guidelines
1. A Selection Committee should consist of more than one individual and should consist of an odd number of individuals to eliminate the possibility of a tied vote with respect to the recommendation of an eligible student applicant.
2. A Selection Committee may meet at the Legislator's district office and the Legislator's staff and other Commonwealth resources may be used to support the Selection Committee's activities.
3. A Selection Committee shall review Program applications from applicants who reside in the Legislator's legislative district. The Selection Committee shall select at least two applicants, depending upon the number of applications received from eligible students, as final applicants, of priority, to be recommended for appointment by the Legislator. In the event that the first recommended applicant does not accept the appointment or does not ultimately meet the eligibility requirements of the State military college, the second recommended applicant shall take the first recommended applicant's place and so on until the list is exhausted. If none of the recommended applicants accept the appointment or ultimately meet the requirements of the State military college, the Legislator may request that the Selection Committee accept and review additional applications and choose additional applicants for recommendation for appointment by the Legislator in the same manner as the initial applications. The Legislator will be bound by the recommendations of the Selection Committee.
4. Under section 3(h) of the Act (24 P. S. § 7403(h)), any Legislator who establishes a Selection Committee shall file an annual report with the Commission that shall include the name of each member of the Selection Committee for that year, the names and addresses of applicants for appointment and the name of the applicant who is appointed after final selection. The annual reports are public records; however, the Commission may in its discretion redact the addresses of applicants when providing access to such annual reports.
ROBERT P. CARUSO,
Acting Executive Director
[Pa.B. Doc. No. 13-550. Filed for public inspection March 22, 2013, 9:00 a.m.]
1 Although the Ethics Act's definition of the term ''public official'' includes a person appointed by a ''governmental body,'' and the definition of the term ''governmental body'' includes an ''officer,'' 65 Pa.C.S. § 1102, a Legislator as such is not a Constitutional officer. See Pa. Const. Art. II, § 9; cf., Cohen, Opinion 03-006 at 4.
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