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HomeMy WebLinkAbout09-520 DeFlaminisJohn A. DeFlaminis, Ph.D. Executive Director Penn Center for Education Leadership 3440 Market Street, Suite 500 Philadelphia, PA 19104 -3325 Dear Mr. DeFlaminis: ADVICE OF COUNSEL March 18, 2009 09 -520 This responds to your letter dated January 28, 2009, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., would impose any prohibitions or restrictions upon a member of the Pennsylvania Early Learning Council, who in a private capacity is the Executive Director of the Penn Center for Educational Leadership ( "the Center") of the Graduate School of Education of the University of Pennsylvania, with regard to: (1) delivering services including the provision of workshops and receiving compensation pursuant to existing contracts and arrangements by letter between the Center and members of the ELC or their designees; and (2) accepting offers of work that would arise in whole or in part from the exposure that might be received as a result of his membership on the ELC. Facts: You have requested an advisory from the Pennsylvania State Ethics C ommission based upon submitted facts that may be fairly summarized as follows. By letter dated November 12, 2008, Governor Edward G. Rendell appointed you to serve as a Member of the Pennsylvania Early Learning Council ("the ELC"). However, you have not yet accepted the aforesaid appointment or taken the oath of office. In a private capacity, you are the Executive Director of the Center. You state that the Center is an organization that provides technical assistance and services, predominantly in the area of leadership, to school districts and other clients working within the public sector. You state that the work of the ELC will coincide with much of the leadership work that you do at the Center. You previously performed work and received compensation pursuant to contracts or business arrangements by letter between the Center and members of the ELC or their designees. You state that such contracts and business arrangements by letter arose after you gave several key -note speeches at Early Childhood Education DeFlaminis, 09 -520 March 18, 2009 Page 2 Conferences. You further state that you have other contractual commitments or business arrangements by letter extending through June 2009. You have submitted a copy of a November 26, 2008, contract/arrangement by letter that currently exists between the Center and members of the ELC or their designees, which document is incorporated herein by reference. It is administratively noted that per the aforesaid contract /arrangement by letter, Center staff or contracted facilitators would provide services in the nature of workshops for a fee that would include travel, preparation, and delivery of the workshops themselves. It is further administratively noted that payment for such services would be made by check payable to you. Based upon the above submitted facts, you pose the following specific questions: 1. Whether the Ethics Act would prohibit or restrict you from performing work and receiving compensation pursuant to the existing contracts and arrangements by letter between the Center and members of the ELC or their designees; and 2. Whether the Ethics Act would prohibit or restrict you in your private capacity as the Executive Director of the Center from accepting offers of work that would arise in whole or in part from the exposure you might receive as a result of your membership on the ELC. 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, the 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. Upon taking office as a Member of the ELC, you would become a public official subject to the provisions of the Ethics Act. See, Buenaventura, Advice 09 -512. 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. (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 DeFlaminis, 09 -520 March 18, 2009 Page 3 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(a), (j). The following terms related to Section 1103(a) 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. Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. DeFlaminis, 09 -520 March 18, 2009 Page 4 The use of authority of office is not limited merely to voting, but extends 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. Subject to certain statutory exceptions, in each instance of a voting conflict, Section 1103(j) of the Ethics Act requires the public official /public employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes. It is noted that Section 1103(a) of the Ethics Act pertaining to conflicts of interest does not prohibit public officials /public employees from having outside business activities or employment; however, the public official /public employee may not use the authority of his public position - -or confidential information obtained by loeing in that position - -for the advancement of his own private pecuniary benefit or that of a business with which he 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, staff, 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 or private client(s). Miller, Opinion 89 -024; Kannebecker, Opinion 92 -010. If a private employer or business with which the public official /public employee is associated or a client of the private employer or business 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 in the instance of a voting conflict, to abstain and fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Section 1103(d) of the Ethics Act provides as follows: § 1103. Restricted activities. (d) Honorarium. - -No public official or public employee shall accept an honorarium. 65 Pa. C. S. § 1103(d). The Ethics Act defines the term "honorarium" and the related term "de minimis economic impact" as follows: § 1102. Definitions "Honorarium." Payment made in recognition of published works, appearances, speeches and presentations and which is not intended as consideration for the value of such services which are nonpublic occupational or professional in nature. The term does not include tokens presented or provided which are of de minimis economic impact. "De minimis economic impact." An economic consequence which has an insignificant effect. DeFlaminis, 09 -520 March 18, 2009 Page 5 65 Pa. C. S. § 1102. Section 1103(d) of the Ethics Act is an absolute prohibition against accepting honoraria. The question of whether a given payment is an honorarium prohibited by Section 1103(d) is determined by an application of the statutory definition set forth in the Ethics Act, not by the mere label that may have been attached to the payment. Confidential Opinion, 01 -001. The statutory definition of "honorarium" generally includes payments which are made in recognition of speaking engagements /presentations, appearances, and published works, but excludes such payments if: (1) they are legitimately intended as consideration for the value of such services; and (2) they are undertaken in the public official's /public employee's private professional or occupational capacity and are not related to the public position. Id. In Baker, Opinion 91 -004, the State Ethics Commission set forth criteria for determining whether the exclusion applies in any given instance, which criteria include the following: the private occupation of the public official /public employee; the expertise of the public official /public employee in the area; the history of activity in the occupation prior to public service; the purpose for the invitation; the capacity in which the public official /public employee is invited; the subject of the speech, work or presentation; the group spoken to and the composition as to members or non - members of the group; the purpose for gathering the group; the amount of the fee relative to the services performed; the source of the invitation; the event at which the speech is given; the subject matter of the speech or published work as compared to the normal subject matter dealt with by the occupational /professional group and any other relevant factors. See also, Confidential Opinion, 01 -001. Having established the above general principles, your specific questions shall now be addressed. With regard to your first specific question, the submitted facts do not indicate the subject matter of all of the various workshops /presentations that would be provided or whether you would personally provide such services. Therefore, this advisory must necessarily be limited to providing the following general guidance. To the extent that a particular workshop/presentation would be given in your private capacity as the Executive Director of the Center and would not be related to your public capacity as a Member of the ELC, a payment that would be legitimately intended as consideration for the value of such services would not constitute an "honorarium" as that term is defined by the Ethics Act, and you would be permitted to accept such payment subject to the restrictions of Section 1103(a) of the Ethics Act. However, to the extent that a particular workshop /presentation would be related to your public position as a Member of the ELC, a payment for your participation in such workshop /presentation would constitute an honorarium, which you would be prohibited from accepting pursuant to Section 1103(d) of the Ethics Act. A workshop /presentation that would be related to the work of the ELC would be considered related to your public position as a Member of the ELC, such that you would be prohibited from accepting an honorarium for such workshop /presentation. In response to your second specific question, you are advised that the Ethics Act would not prohibit or restrict you in your private capacity as the Executive Director of the Center from accepting offers of work that would arise in whole or in part from the exposure you might receive as a result of your membership on the ELC, subject to the conditions that: (1) you would not use the authority of your position as a Member of the ELC, or confidential information received by holding such public position, in furtherance of obtaining such work; and (2) any payment that you would receive for the erformance of such work would not constitute an honorarium prohibited by Section 1103(d) of the Ethics Act as delineated above. DeFlaminis, 09 -520 March 18, 2009 Page 6 The propriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: Upon taking office as a Member of the Pennsylvania Early Learning Council ( "the ELC "), you would become a public official subject to the provisions of the Public Official and Employee Ethics Act (the "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Based upon the submitted facts that: (1) in a private capacity, you are the Executive Director of the Penn Center for Educational Leadership ("the Center") of the Graduate School of Education of the University of Pennsylvania; (2) the Center is an organization that provides technical assistance and services, predominantly in the area of leadership, to school districts and other clients working within the public sector; (3) the work of the ELC will coincide with much of the leadership work that you do at the Center; (4) you previously performed work and received compensation pursuant to contracts or business arrangements by letter between the Center and members of the ELC or their designees; (5) you have other contractual commitments or business arrangements by letter extending through June 2009; and (6) per one such contract /arrangement by letter, the Center staff or contracted facilitators would provide services in the nature of workshops for a fee that would include travel, preparation, and delivery of the workshops themselves, with payment for such services to be made by check payable to you, you are advised as follows. To the extent that a particular workshop /presentation would be given in your private capacity as the Executive Director of the Center and would not be related to your public capacity as a Member of the ELC, a payment that would be legitimately intended as consideration for the value of such services would not constitute an "honorarium" as that term is defined by the Ethics Act, and you would be permitted to accept such payment subject to the restrictions of Section 1103(a) of the Ethics Act. However, to the extent that a particular workshop /presentation would be related to your public position as a Member of the ELC, a payment for your participation in such workshop /presentation would constitute an honorarium, which you would be prohibited from accepting pursuant to Section 1103(d) of the Ethics Act. A workshop /presentation that would be related to the work of the ELC would be considered related to your public position as a Member of the ELC, such that you would be prohibited from accepting an honorarium for such workshop /presentation. The Ethics Act would not prohibit or restrict you in your private capacity as the Executive Director of the Center from accepting offers of work that would arise in whole or in part from the exposure you might receive as a result of your membership on the ELC, subject to the conditions that: (1) you would not use the authority of your position as a Member of the ELC, or confidential information received by holding such public position, in furtherance of obtaining such work; and (2) any payment that you would receive for the performance of such work would not constitute an honorarium prohibited by Section 1103(d) of the Ethics Act as delineated above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, an Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, provided the requester has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full DeFlaminis, 09 -520 March 18, 2009 Page 7 Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code §13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717 - 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Robin M. Hittie Chief Counsel