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HomeMy WebLinkAbout09-576 PattersonAudrey J. Patterson 30 Woodland Avenue Wellsboro, PA 16901 Dear Ms. Patterson: ADVICE OF COUNSEL October 29, 2009 09 -576 This responds to your letter received September 15, 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 an individual employed as an Environmental Education Specialist for the Pennsylvania Department of Conservation and Natural Resources with regard to selling a guidebook that the individual researched and wrote while on leave without pay from her Commonwealth employment, where: (1) the individual would sell the guidebook on days off from her Commonwealth employment; and (2) such sales would include sales to bookstores and individuals but would not include sales to any state park gift shops or to individuals through her Commonwealth position. Facts: You have requested an advisory from the Pennsylvania State Ethics C ommission based upon submitted facts that may be fairly summarized as follows. You have a bachelor's degree in Environmental Studies, which you earned prior to securing employment with the Commonwealth of Pennsylvania. You are currently employed on a seasonal basis as an Environmental Education Specialist with the Pennsylvania Department of Conservation and Natural Resources "DCNR" at Leonard Harrison State Park. You have submitted a copy of your official DCNR position description, which document is incorporated herein by reference. A copy of the job classification specifications for the position of Environmental Education Specialist (job code 54800) has been obtained and is also incorporated herein by reference. Per your position description and job classification specifications, as an Environmental Education Specialist with DCNR, you perform professional work in the development and presentation of environmental education and interpretive programs and activities within a state park complex. Your duties include, inter alias 1 researching and developing educational materials, publications and exhibits; 2 planning, developing, coordinating and presenting environmental and historical education and interpretive programs and activities; (3) submitting proposals for Environmental Education fund monies, coordinating purchases, and submitting invoices to the Regional Office; and (4) making recommendations to the park manager for Patterson, 09 -576 October 29, 2009 Page 2 replacement and purchase of new equipment. An Environmental Education Specialist with DCNR exercises professional judgment in the completion of assignments. You state that you researched and wrote a guidebook ( "Guidebook ") while you were on leave without pay from your Commonwealth employment. You state that your supervisor advised you that you were required to submit a Supplementary Employment Request to DCNR if you wanted to sell the Guidebook on days off from your Commonwealth employment. You state that such sales would include sales to bookstores and individuals but would not include sales to any state park gift shops or to individuals through your position with the Commonwealth. You have submitted a copy of a Supplementary Employment Request dated June 2, 2009, by which you sought approval for supplementary employment as a self - publishing part -time author. You have also submitted a copy of an email dated August 16, 2009, from you to Kimberlee Ulrich, Human Resource Assistant with the Employee Relations, Services and Safety Division of the Bureau of Human Resources within DCNR. It is noted that in said email, you stated, in pertinent part, that all sources listed in the bibliography of the Guidebook are available to the public. You have submitted copies of a Supplementary Employment Request Agency Notification ("Agency Notification ") dated August 24, 2009, and a memorandum ("Memorandum ") of same date to you from Danette Bixler - George, Chief of the Employee Relations, Services and Safety Division of the Bureau of Human Resources within DCNR. The Agency Notification provides that your Supplementary Employment Request was denied for the following reasons: In your email message of 8/16/09, in which you clarified your supplementary employment request, you stated that you were requesting permission to sell your book. Much of the material in the book is virtually the same as that which you research, develop, and /or present in your DCNR position as an Environmental Education Specialist. Therefore, in marketing the book, you would be violating the Governor's Code of Conduct, specifically Part I, section 1 a (adverse pecuniary interest), which states that no employee shall "engage directly or indirectly in any business transactions or private arrangement for profit which accrues from or is based upon his or her official position or authority." August 24, 2009, Supplementary Employment Request Agency Notification. It is noted that the Memorandum provides, in pertinent part, as follows: The provision in the Code of Conduct that we have based our decision on is at least partially derived from the Public Official and Employee Ethics Act. You may wish to submit a request to the Ethics Commission for advice on whether marketing your book would be permitted under the Ethics Act ... The request must be with regard to future marketing of the book. If the Ethics Commission advises you that marketing your book would be permitted under the Ethics Act, you may resubmit your Supplementary Employment Request to DCNR, along with the Ethics Commission's Advisory, and we will reconsider our denial of your request based on the Advisory. Memorandum of August 24, 2009. Patterson, 09 -576 October 29, 2009 Page 3 It is noted that the facts that you have submitted do not include the subject matter of the Guidebook. You assert, The subject matter of a book should not be a determining factor when researched and written while unemployed from the Commonwealth." Advisory Request Letter, at 2. Based upon the above submitted facts, you ask whether the Ethics Act would prohibit or restrict you from selling the Guidebook on days off from your Commonwealth employment, where such sales would include sales to bookstores and individuals but would not include sales to any state park gift shops or to individuals through your position with the Commonwealth. 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. As an Environmental Education Specialist for DCNR, you are a public employee subject to the provisions of the Ethics Act. This conclusion is based upon the position description and the job classification specifications, which when reviewed on an objective basis, indicate clearly that the power exists to take or recommend official action of a non - ministerial nature with respect to one or more of the following: contracting; procurement; administering or monitoring grants or subsidies; planning or zoning; inspecting; licensing; regulating; auditing; or other activity(ies) where the economic impact is greater than de minimis on the interests of another person. 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. Patterson, 09 -576 October 29, 2009 Page 4 "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. 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. 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 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 of "honorarium" additionally excludes "tokens" of a de minimis economic impact. 65 Pa.C.S. § 1102. However, a monetary payment would not fall within that exclusion. Crompton, Opinion 09 -002. Patterson, 09 -576 October 29, 2009 Page 5 Having set forth the above principles, your specific inquiry shall now be addressed. As noted above, the facts that you have submitted do not indicate the subject matter of the Guidebook. You are advised that the subject matter of the Guidebook would be relevant to a determination of whether the Guidebook would be related to your public position as an Environmental Education Specialist with DCNR. Further, the fact that you wrote the Guidebook while on leave without pay would not, in and of itself, render the Guidebook unrelated to your public position. Based upon the insufficiency of the submitted facts, this advisory must necessarily be limited to providing the following general guidance. To the extent that the subject matter of the Guidebook would be related to the work you perform in your public position as an Environmental Education Specialist with DCNR, any payment you would receive from sale(s) of the Guidebook would constitute an "honorarium" as that term is defined by the Ethics Act, and you would be prohibited from accepting such payment pursuant to Section 1103(d) of the Ethics Act. However, to the extent that the subject matter of the Guidebook would not be related to the work you perform erform in your public position as an Environmental Education Specialist with DCNR, any payment from sale(s) of the Guidebook that would be legitimately intended as consideration for the value of such publication would not constitute an honorarium, and you would be permitted to accept such payment subject to the conditions that: (1) the research and writing of the Guidebook was not done during Commonwealth work hours or through the use of Commonwealth property, facilities, equipment, personnel, or supplies, or confidential information obtained by being in your public position as an Environmental Education Specialist with DCNR; and (2) you would not use the authority of your position as an Environmental Education Specialist with DCNR, or confidential information received by holding such public position, in furtherance of sale(s) of the Guidebook. 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: As an Environmental Education Specialist for the Pennsylvania Department of Conservation and Natural Resources ("DCNR"), you are a public employee subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Based upon the submitted facts that: (1) you are currently employed on a seasonal basis with DCNR at Leonard Harrison State Park; (2) you researched and wrote a guidebook ( "Guidebook ") while you were on leave without pay from your Commonwealth employment; (3) you propose to sell the Guidebook on days off from your Commonwealth employment; and (4) such sales would include sales to bookstores and individuals but would not include sales to any state park gift shops or to individuals through your Commonwealth position, you are advised as follows. To the extent that the subject matter of the Guidebook would be related to the work you perform in your public position as an Environmental Education Specialist with DCNR, any payment you would receive from sale(s) of the Guidebook would constitute an "honorarium" as that term is defined by the Ethics Act, and you would be prohibited from accepting such payment pursuant to Section 1103(d) of the Ethics Act. However, to the extent that the subject matter of the Guidebook would not be related to the work you perform in your public position as an Environmental Education Specialist with DCNR, any payment from sale(s ) of the Guidebook that would be legitimately intended as consideration for the value of such publication would not constitute an honorarium, and you would be permitted to accept such payment subject to the conditions that: (1) the research and writing of the Guidebook was not done during Commonwealth work Patterson, 09 -576 October 29, 2009 Page 6 hours or through the use of Commonwealth property, facilities, equipment, personnel, or supplies, or confidential information obtained by being in your public position as an Environmental Education Specialist with DCNR; and (2) you would not use the authority of your position as an Environmental Education Specialist with DCNR, or confidential information received by holding such public position, in furtherance of sale(s) of the Guidebook. 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 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