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HomeMy WebLinkAbout09-006 ConfidentialI. ISSUE: OPINION OF THE COMMISSION Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Nicholas A. Colafella Mark Volk DATE DECIDED: 7/22/09 DATE MAILED: 8/4/09 09 -006 This Opinion is issued in response to your confidential advisory request dated May 6, 2009. Whether, pursuant to Section 1103(a) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1103(a), a Member of the [Chamber of the General Assembly] ( "State Legislator ") would have a conflict of interest with respect to the posting of a legislative video of the State Legislator on the Internet website "YouTube" where: (1) the video would be created and posted on YouTube by the [Chamber of the General Assembly], and (2) YouTube might provide a link to the State Legislator's campaign video(s) as part of a YouTube - generated list of related video links; and if so, whether the use of exit notices or disclaimers would alleviate the conflict of interest. II. FACTUAL BASIS FOR DETERMINATION: As A with the B of the [Chamber of the General Assembly], you have been authorized by State Legislator C to request a confidential advisory from this Commission on his behalf. You have submitted extensive facts, which may be fairly summarized as follows. You state that the creation of legislative videos is an effective means of communicating with constituents. Both chambers of the legislative branch of the federal government and legislative entities in a number of states utilize the Internet website YouTube for communicating legislative and constituent information. You note that YouTube's website provides the following description of YouTube: Founded in February 2005, YouTube is the leader in online video, and the premier destination to watch and share original videos worldwide through a Web experience. YouTube allows people to easily upload and share video clips on Confidential Opinion, 09 -006 August 4, 2009 Page 2 www.YouTube.com and across the Internet through websites, mobile devices, blogs, and email. Everyone can watch videos on YouTube. People can see first- hand accounts of current events, find videos about their hobbies and interests, and discover the quirky and unusual.... http: / /www.youtube.com /t /about. When a viewer selects a video to watch on YouTube, the video is watched through the framework of the YouTube website. In addition to providing the video, YouTube may post next to the video links to other videos under lists generated by YouTube. The aforesaid lists, entitled "Featured Videos," "Related Videos," and "Spotlight Videos," are described by YouTube as follows: YouTube Glossary: Featured Videos Featured Videos will be primarily populated with videos from YouTube's thousands of partners, but might also include select user videos that are currently popular or that we have previously showcased in Spotlight Videos. We will automatically rotate these videos throughout the day to keep them fresh. Featured Videos are not advertisements or paid placements, but do feature content from partners with whom we have a commercial relationship. http: / /www.google.com /support /youtube /bin /answer. py ?h1=en &answer = 143421. YouTube Glossary: Related Videos Related Videos — When you watch a video on the YouTube, a list of related videos will show up to the bottom -right of the video. This list contains many videos which might be related to the video by subject matter, so that you may find it easier to search out other videos based on the same or similar subject. http: / /www.google.com /support /youtube /bin /answer. py ?h1=en &answer = 95612. YouTube Glossary: Spotlight videos Spotlight Videos is a periodic module showcasing interesting and timely content from our community and partners, all organized around an event or theme. Spotlight videos are not advertisements and are not based on any commercial relationship. http: / /www.google.com /support /youtube /bin /answer. py ?h1=en &answer = 143420. You state that videos appearing in the above YouTube lists may be logically connected or completely unrelated to the video selected by the viewer. You state that it is YouTube's nature to commingle legislative videos with links to Internet campaign videos. You have submitted three screen shots taken from YouTube's website on April 15, 2009. Each screen shot depicts a legislative video of a United States Congressman and a list of "Related Videos" to the right of the video, which list includes a link to a campaign - related video. Confidential Opinion, 09 -006 August 4, 2009 Page 3 With respect to your advisory request, you state that the resources of the [Chamber of the General Assembly] would be used to create and post legislative videos on YouTube. You further state that such resources would not be used to create campaign videos, post campaign videos, or establish any link between legislative and campaign videos. You note that there is no cost associated with the use of YouTube. Based upon the above submitted facts, you ask whether State Legislator C would have a conflict of interest under Section 1103(a) of the Ethics Act with respect to the posting of a legislative video of State Legislator C on YouTube where such video might be accompanied with a YouTube - generated link to State Legislator C's campaign video(s), and if so, whether the use of exit notices or disclaimers would alleviate the conflict of interest. You have proffered your own analysis of the legal issues that you have raised. You note, inter alia, that the same situation can arise in more traditional media outlets, for example, when a newspaper chooses to place published legislative information near a campaign advertisement. You assert that the inadvertent commingling of legislative and campaign references by disinterested third parties such as YouTube, Internet search engines such as Google or Yahoo, or a newspaper is not attributable to the State Legislator and should not create a conflict of interest for the State Legislator. By letter dated June 2, 2009, you were notified of the date, time and location of the executive meeting at which your request would be considered. At the executive meeting on July 22, 2009, you appeared and presented a demonstration of YouTube. You emphasized that your advisory request is strictly limited to postings of legitimate legislative videos where, factually, there would be no affirmative act to create a link to non - legislative information such as campaign information. 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. State Legislator C is a public official 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 Confidential Opinion, 09 -006 August 4, 2009 Page 4 IV. CONCLUSION: "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. 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. We have previously noted that a Member of the General Assembly is authorized, pursuant to law, to distribute to constituents materials printed at public expense where the distribution of such materials constitutes official business of the Member. Salvatore, Order 494. In the instant matter, we are not considering a mailing, but rather, a proposed posting on the YouTube Internet web site. Per the submitted facts, the communications in question would be legislative videos and would not be related to State Legislator C's campaign. We determine that the actions of disinterested third parties such as YouTube or Internet search engines such as Google and Yahoo to notify the viewer of other information on the Internet relating to State Legislator C would not alter the nature of the communication by State Legislator C and would not be attributable to State Legislator C. Under the submitted facts, we hold that where legislative video communications constituting official business of State Legislator C would be posted on the YouTube Internet web site, the actions of disinterested third parties such as YouTube or Internet search engines such as Google and Yahoo to notify the viewer of other information on the Internet relating to State Legislator C would not form the basis for a conflict of interest under Section 1103(a) of the Ethics Act on the part of State Legislator C. Based upon the above, there is no need to address the second portion of your inquiry pertaining to the use of exit notices or disclaimers. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Confidential Opinion, 09 -006 August 4, 2009 Page 5 A Member of the [Chamber of the General Assembly] is a public official subject to the provisions of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1101 et seq. ("Ethics Act "). Where legislative video communications constituting official business of State Legislator C would be posted on the YouTube Internet web site, the actions of disinterested third parties such as YouTube or Internet search engines such as Google and Yahoo to notify the viewer of other information on the Internet relating to State Legislator C would not form the basis for a conflict of interest under Section 1103(a) of the Ethics Act on the part of State Legislator C. 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, Louis W. Fryman Chair