HomeMy WebLinkAbout09-002 CromptonOPINION OF THE COMMISSION
Before: John J. Bolger, Vice Chair
Donald M. McCurdy
Paul M. Henry
Raquel K. Bergen
Nicholas A. Colafella
DATE DECIDED: 4/30/09
DATE MAILED: 5/15/09
09 -002
J. Andrew Crompton, Esquire
Counsel to the President Pro Tempore
Senate of Pennsylvania
Room 292 Main Capitol Building
Harrisburg, PA 17120
Dear Mr. Crompton:
This Opinion is issued in response to your advisory request dated March 2, 2009.
I. ISSUE:
Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §
1101 et seq., would impose any prohibitions or restrictions upon an individual employed as
counsel ( "Counsel ") to the President Pro Tempore of the Pennsylvania Senate where: (1)
Counsel would give a speech in his official capacity to an organization or similar entity
( "the Organization "); (2) the Organization would elect to donate $150 to a non - profit entity
( "the Donee ") in Counsel's name in appreciation of the speech; (3) Counsel would not
select the Donee; (4) the Donee would have no connection with Counsel or the
Pennsylvania General Assembly; and (5) Counsel would not agree to give the speech
contingent upon the donation to the Donee.
II. FACTUAL BASIS FOR DETERMINATION:
You are Counsel to the Honorable Joseph Scarnati, President Pro Tempore of the
Pennsylvania Senate ( "Senate "). You state that your job responsibilities include drafting
legislation, representing Republican Senators in meetings and negotiations, rendering
legal advice concerning litigation, and a variety of other tasks.
You ask whether the Ethics Act would impose any prohibitions or restrictions upon
you where: (1) you would give a speech in your official capacity to an organization or
similar entity (hereinafter referred to as the Organization "); (2) the Organization would
Crompton, 09 -002
May 15, 2009
Page 2
elect to donate $150 to a non - profit entity (hereinafter referred to as the Donee ") in your
name in appreciation of the speech; (3) you would not select the Donee; (4) the Donee
would have no connection with you or the Pennsylvania General Assembly; and (5) you
would not agree to give the speech contingent upon the donation to the Donee.
By letter dated March 25, 2009, you were notified of the date, time and location of
the public meeting at which your request would be considered.
On April 22, 2009, this Commission received your letter of same date, in which you
presented the following information.
You stated that implicit in your question is the fact that the public official /public
employee does not at any point control the $150 gift or direct the Organization to give the
amount to a designated cause. You stated that according to the RANDOM HOUSE
DICTIONARY, the first definition of the term "accept" is to take or receive (something
offered)." You stated that implied in Section 1103(d) of the Ethics Act and in the Ethics
Act's definition of the term "honorarium" is that the payment is being made to the public
official /public employee, and that such is not the case in the question you have presented.
You further stated that the facts you have presented differ significantly from those
reviewed by this Commission in Richardson, Opinion 93 -006.
You noted the legislative debate on the honorarium issue, which occurred in the
Pennsylvania House of Representatives prior to the passage of Act 9 of 1989 (Legislative
Journal of House, 1989 Session, No. 14, at 256 -258). You stated that you would disagree
with an assumption that the existing honorarium language in the statute should be
interpreted as barring the nonprofit contribution you have presented for review. You
asserted that such an interpretation would seem to be contrary to the standards of
statutory construction.
Finally, you noted the case of United States v. National Treasury Employees Union,
513 U.S. 454, 115 S. Ct. 1003, 130 L. Ed. 2d 964 (1995), in which the United States
Supreme Court held that a federal honorarium ban was unconstitutional as applied to the
executive branch of the federal government where such ban applied to nearly all federal
employees and prohibited honoraria for speeches unrelated to an employee's government
work. You stated that the broader the application of an honorarium prohibition, the more
likely it is that the constitutionality of the prohibition may be questioned.
At the public meeting on April 30, 2009, you appeared and offered commentary.
You stated that you are not challenging the constitutionality of Section 1103(d) of the
Ethics Act. You stated that in addition to the scenario you have presented, there could be
other, varying scenarios. You stated that the question becomes what it means to receive
an honorarium. You further stated that under the facts you have submitted, you do not
believe that you would be receiving an honorarium.
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.
You acknowledge that in your official capacity as Counsel to the President Pro
Crompton, 09 -002
May 15, 2009
Page 3
Tempore of the Senate, you are a public employee subject to the provisions of the Ethics
Act.
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 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.
65 Pa.C.S. § 1102.
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
Crompton, 09 -002
May 15, 2009
Page 4
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.
65 Pa.C.S. § 1102.
Section 1103(d) of the Ethics Act is an absolute prohibition against accepting
honoraria. The statutory definition of "honorarium" generally includes payments that 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. Confidential Opinion, 01 -001. The definition excludes "tokens" of a de minimis
economic impact. 65 Pa.C.S. § 1102.
Section 1103(d) of the Ethics Act only applies to "public officials" and "public
employees" as those terms are defined by the Ethics Act. Additionally, based upon the
above definition of the term "honorarium," Section 1103(d) of the Ethics Act only applies if
there is a nexus to the government work or if there is a payment that is not actual
consideration for the value of the services. See, Fiorello, Order 1363. In this regard,
Section 1103(d) is distinguishable from the broad, federal provision addressed in National
Treasury Employees Union, supra. Cf., Wolfe v. Barnhart, 446 F.3d 1096 (10th Cir. Okla.
2006).
We first determine that a monetary payment would not fall within the exception to
the definition of "honorarium" for "tokens" of a de minimis economic impact. In the
absence of a statutory definition of the term "token," the common and approved usage of
the term (see, 1 Pa.C.S. § 1903(a)) would be a "souvenir or keepsake" and would not
include monetary payments. (See, Merriam - Webster Online Dictionary; The American
Heritage Dictionary of the English Language, Fourth Edition (2000) (online)).
In the instant matter, any payment that the Organization would make in recognition
or appreciation of a speech that you would give to the Organization in your public capacity
as Counsel to the President Pro Tempore of the Senate would constitute an "honorarium"
as that term is defined in the Ethics Act. The remaining question that we must answer is
whether such payment, as an honorarium, may be made directly to the Donee in your
name.
We have reviewed the legislative debate on the honorarium issue. Although an
amendment (A0304) had been proposed to permit an honorarium to be paid directly to a
charity, the amendment was withdrawn following discussion concerning potential
"loopholes" or circumvention of the intent to prohibit the payment of honoraria. Legislative
Journal of House, 1989 Session, No. 14, at 256 -258.
In Richardson, Opinion 93 -006, we noted the aforesaid legislative debate and held
that Section 1103(d) of the Ethics Act prohibited university presidents, university vice -
presidents, chancellors, vice - chancellors, and deans of the State System of Higher
Education from declining honoraria payments in favor of donations to institutional
endowment funds or the system -wide foundation.
In considering the above, it is our determination that where the Organization would
make a payment to the Donee in your name in recognition or appreciation of a speech that
Crompton, 09 -002
May 15, 2009
Page 5
you would give to the Organization in your public capacity as Counsel to the President Pro
Tempore of the Senate, Section 1103(d) of the Ethics Act would require you to take
affirmative steps to decline such honorarium. The failure by a public official /public
employee to act upon knowledge that a payment constituting an honorarium had been
made to an entity in the name of the public official /public employee would be tantamount to
accepting such honorarium and would be in contravention of Section 1103(d) of the Ethics
Act.
You are advised that one possible means by which to decline such honorarium
would be to notify the Organization and the Donee that you are declining the donation
made in your name and that such donation may not be listed /identified as having been
made in your name.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
IV. CONCLUSION:
As Counsel to the Honorable Joseph Scarnati, President Pro Tempore of the
Pennsylvania Senate ( "Senate "), you are a public employee subject to the Public Official
and Employee Ethics Act, 65 Pa.C.S. § 1101 et seq. ( "Ethics Act "). Based upon the
submitted facts that: (1) you would give a speech in your official capacity to an
organization or similar entity (hereinafter referred to as the Organization "); (2) the
Organization would elect to donate $150 to a non - profit entity (hereinafter referred to as
the Donee ") in your name in appreciation of the speech; (3) you would not select the
Donee; (4) the Donee would have no connection with you or the Pennsylvania General
Assembly; and (5) you would not agree to give the speech contingent upon the donation to
the Donee, you are advised as follows. Any payment that the Organization would make in
recognition or appreciation of a speech that you would give to the Organization in your
public capacity as Counsel to the President Pro Tempore of the Senate would constitute
an "honorarium" as that term is defined in the Ethics Act. Section 1103(d) of the Ethics
Act, which prohibits public officials /public employees from accepting honoraria, would
require you to take affirmative steps to decline such honorarium. One possible means by
which to decline such honorarium would be to notify the Organization and the Donee that
you are declining the donation made in your name and that such donation may not be
listed /identified as having been made in your name.
Act.
The propriety of the proposed conduct has only been addressed under the Ethics
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,
Crompton, 09 -002
May 15, 2009
Page 6
John J. Bolger
Vice Chair
Chair Louis W. Fryman did not participate in this matter.