The executive director of the campaign committee for Philadelphia District Attorney Seth Williams sent an email to the majority of his deputies and chiefs last week asking them to attend a fundraiser and contribute to his campaign.
In the email, sent May 29 by Lisette Gonzalez, the executive director for Friends of Seth Williams, she told the recipients that, despite any concerns they might have, they could attend the event, and “according to the ethics board, you can also make donations.”
She later goes on to say: “I know for a fact, Seth would love if you could attend and support his event next week.”
In addition, the email encouraged the recipients to share a flyer with “any other staff and team members you think may want to also attend and support the event.”
The email was sent to 34 of his deputies and chiefs at their government email addresses inviting them to the “Seth in the City” fundraiser Wednesday.
A spokeswoman for the District Attorney’s Office said that Williams did not give his blessing to send out the email and that he did not know that the email was sent out to his top aides’ public-employee email addresses until after the fact.
Several lawyers who were aware of the email but didn’t want to talk on the record described the email as “unseemly” and “inappropriate.” Several other election lawyers said the email was problematic under several different laws.
The email recipients included most of his deputies, including first assistant Edward McCann.
According to an organizational chart of the Philadelphia District Attorney’s Office, four chiefs were left off the distribution list for the email.
In the email, Gonzalez quickly acknowledged that the recipients might have ethical concerns regarding the fundraiser. After giving her name and inviting them to the event, Gonzalez wrote: “I know what you may all be thinking? ‘I can’t support nor attend a political event.’ But the reality is, YES YOU CAN! This event is after work hours and according to the ethics board, you can also make donations for Seth if you shall decide to attend.
“As we may all agree, Seth and all of you have been doing a great job! Your office has modified many things that have helped many people and this is why I decided to reach out to all of you. I have attached the invitation to this email. I know for a fact, Seth would love if you could attend and support his event next week.”
District Attorney’s Office spokeswoman Tasha Jamerson said that Williams was not available immediately Monday afternoon because he was in meetings. But Jamerson said that “he legitimately did not know this was sent out and he legitimately did not know it was being sent to work addresses and as soon as he learned about it he said it was a mistake and it won’t happen again.”
Jamerson said that her understanding was that Gonzalez thought it was OK to send the email but that it was done without Williams’ awareness.
“We don’t want to have anything to appear to be inappropriate,” Jamerson said.
McCann wrote to the same group of 34 less than 24 hours later. McCann let them know that Williams had been informed about the invitation from him and that fundraising invitations would not be sent to business email addresses in the future, according to a copy of the email The Legal obtained.
“A couple of things about this,” McCann wrote. “First of all, you should feel absolutely no obligation whatsoever to attend this event (I personally will not be attending). The DA just found out from me that this invitation had been sent to all of you, and told me to assure everyone that he will make sure that such invitations are not sent to the office’s email addresses in the future. So I would ask that this invitation not be forwarded to anyone else in the office.”
Gonzalez said the email was her idea and that no one asked her to do it. She said she hadn’t talked to Williams about it. She pointed out that she sent the email from her home computer after work hours.
“I wanted it to be a surprise” and have people from the office show up at the event, she said.
Gonzalez said that she’d attended classes covering the Philadelphia Ethics Board and discovered there was a “misconception” that people in the District Attorney’s Office couldn’t attend a fundraiser or contribute to Williams’ campaign.
When told that several people had said they couldn’t ever remember seeing a similar invite sent to assistant district attorneys, Gonzalez replied: “It probably hasn’t been done before. I’m a bold person. There isn’t anything wrong with letting them know they can attend if they want to.”
Gonzalez said no one gave her the email addresses. She said she knew the email system and that everyone’s email address was constructed the same and typed them out herself.
Some said the email was problematic under several laws because, among other things, it linked attendance to donations and encourages employees to solicit contributions.
“It raises issues under the City Charter and, by using the city-supplied email system and city-supplied email addresses, could be construed as a violation, albeit a de minimis one, of the criminal prohibition of the use of public resources to carry on political activity,” said Gregory M. Harvey, chair of the public election law practice at Montgomery McCracken Walker & Rhoads.
A lawyer who worked on election law issues for Williams during his last campaign, Samuel C. Stretton, said the email was “wrong.”
“It’s political macing,” said Stretton, an ethics and election lawyer who writes an ethics column for The Legal.
He said the email could implicate both the state Ethics Act as well as the federal Hatch Act, which is enforced by the U.S. Office of Special Counsel.
“An elected official cannot directly solicit campaign contributions from people employed by him in his public office,” he said.
He said Williams should “rescind it” and “repudiate it.”
Scott A. Coffina, a white-collar defense lawyer at Drinker Biddle & Reath, said there were a number of issues with the email.
“The concern is that there is some element of coercion,” he said.
Coffina said there were four key problems with the email as it related to the Hatch Act: Williams was “invoked” by the line “Seth would love if you could attend,” it was sent to subordinates, the use of government email and email addresses, and encouraging the employees to pass it on.
Because of that “the Office of Special Counsel would” take a hard look, he said.
“Generally, candidates are responsible for their campaigns,” Coffina said.
While the state Ethics Act would appear to cover Williams, there is nothing expressly stated under the restricted activities regarding solicitation of contributions. The act says only that contributions cannot be solicited with the expectation that the official will give the contributor something in return.
John J. Contino, executive director of the state Ethics Commission, said the act would cover elected district attorneys. He said there was nothing in the act that per se covers the solicitation of campaign contributions. He said the conflict-of-interest clause, however, has been interpreted to prohibit political activity when the public official uses aspects, benefits or attributes of the currently held incumbent office to advance those political or pecuniary interests.
Contino pointed out that former state Senator Jane Orie was sentenced Monday in part for violating the Ethics Act through similar activity. He said the Bonusgate cases were similar as well.
There were two cases out of the Pittsburgh Controller’s Office in which employees solicited staff contributions. Violations are usually found in what Contino called a “macing” situation in which employees feel they have to give money or face losing their job.
Contino said his office would typically look at whether a solicitation was sent during work hours, if it was sent to public email addresses and whether those email addresses were publicly and readily available.
If the email was sent on a Saturday from a private email account to a publicly available listserv, that would most likely not be a violation of the act, he said.
State and local employees are not just bound by state and local ethics laws, but can also fall under the parameters of the federal Hatch Act, which is typically used to restrict political activity of federal employees. The act can expand to cover state employees when they supervise programs that benefit from federal funding.
According to an information sheet published by the U.S. Office of Special Counsel, which is in charge of enforcing the act, state and local employees who benefit from federal dollars “may not directly or indirectly coerce contributions from other state or local employees.”
As an example, the office said “a supervisor should not advise employees that they may purchase tickets to a fundraising event.”
Penalties for violating the Hatch Act are administrative, not criminal. Employees could be removed or suspended and funding could be cut to the agency.
According to the city’s proposed operating budget for Fiscal Year 2013, the District Attorney’s Office was slated to receive $5.2 million in federal funding in Fiscal Year 2012 and slightly less than that in 2013.
As several lawyers pointed out, the situation regarding Gonzalez’ email has similarities to an ethics case brought against former acting U.S. Attorney Laurie Magid of the Eastern District of Pennsylvania.
To settle an ethics investigation, Magid agreed in July 2011 to serve a 100-day suspension as punishment for violating restrictions on political activity in connection with fundraising events her husband hosted at their home for U.S. Representative Patrick L. Meehan, R-Pa., and former U.S. Senator Arlen Specter.
Magid was exonerated of what she said were the most serious charges — soliciting political contributions in violation of the Hatch Act. The suspension was for three other violations of the act.
Prior to both events, Magid said, she sought guidance from the OSC. She said she had been assured her husband could hold a fundraiser in their home; that she could attend and help organize it; that she could suggest and provide names for the guest list; but that she could not personally solicit, accept or receive political contributions.
But two people from her office who couldn’t attend the fundraisers dropped off checks to her at work, in violation of the act. The third violation stemmed from Magid’s accessing a list of former federal prosecutors to send invitations for one of the events.
Montgomery County District Attorney Risa Vetri Ferman’s run for her position came under review by the Office of Special Counsel. In the summer of 2011, the office said she violated the Hatch Act because she ran in a partisan election while holding a non-elected position of first assistant district attorney.
State and local employees who oversee programs that receive federal funds cannot run in partisan elections, the office said. Ferman denied she did anything wrong, and, while the office determined Ferman was covered by the act, it decided not to take any action against her.
Hank Grezlak can be contacted at 215-557-2486 or at firstname.lastname@example.org. Follow him on Twitter @HGrezlakTLI. Amaris Elliott-Engel can be contacted at 215-557-2354 or at email@example.com. Follow her on Twitter @AmarisTLI. Gina Passarella can be contacted at 215-557-2494 or at firstname.lastname@example.org. Follow her on Twitter @GPassarellaTLI. •