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Home My WebLink About11-003 Confidential OPINION OF THE COMMISSION Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Raquel K. Bergen Nicholas A. Colafella Mark Volk DATE DECIDED: 6/23/11 DATE MAILED: 6/28/11 11-003 This Opinion is issued in response to your letter dated May 3, 2011, by which you requested a confidential advisory from this Commission. 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 a Member of the [Chamber of the General Assembly] (“State Legislator”), who proposes to co-author and publish a book (“Book”) in his private capacity as [a type of professional] and not in his public capacity as a Member of the General Assembly, with regard to accepting payment(s) of a modest advance against future royalties from sales of the Book or royalties to be calculated based upon actual sales of the Book. II.FACTUAL BASIS FOR DETERMINATION: You have been authorized by State Legislator A to request a confidential advisory from this Commission on his behalf. You have submitted facts that may be fairly summarized as follows. State Legislator A, in his private capacity, is a B licensed to [engage in professional activities] in the Commonwealth. State Legislator A is currently [serving with a type of firm in a certain capacity] in [name of municipality], Pennsylvania. State Legislator A has in the past been and is presently engaged in various activities related to his private profession in the C field. Before State Legislator A began serving in his current public capacity, he authored a book entitled [title of book] that was published in [year]. State Legislator A also authored a number of articles on C subjects, Confidential Opinion, 11-003 June 28, 2011 Page 2 spoke as a guest at several Ds, served as a faculty member and authored course materials for a number of Es for Bs, appeared on numerous broadcast programs to discuss C issues, and presented many seminars to the public on C matters. At the present time, State Legislator A teaches accredited courses, including a course in F, as an adjunct instructor at a college in Pennsylvania. You state that State Legislator A proposes to co-author a book entitled [title of book] (hereinafter referred to as “the Guidebook”). The Guidebook would be a [type of guide] to [certain subject matter] and would contain [certain content] accompanied with C analysis and generalized C counsel. You state that State Legislator A would not include any confidential information received through his holding public office in the Guidebook and that he would not use legislative resources such as personnel, equipment, supplies, or facilities to write or market the Guidebook. The publishing contract for the Guidebook would provide for payment to State Legislator A of a modest advance against future royalties from sales of the Guidebook and royalties to be calculated based upon actual sales of the Guidebook as per the customary terms and conditions of the publishing house. You state that State Legislator A has not accepted any payments for the Guidebook. Based upon the above submitted facts, you ask whether the Ethics Act would prohibit or restrict State Legislator A from accepting any payment(s) for an advance against future royalties from sales of the Guidebook or for royalties from actual sales of the Guidebook. By letter dated May 27, 2011, you were notified of the date, time and location of the executive meeting at which your request would be considered. On June 14, 2011, this Commission received your Brief, in which you argued that any payment to State Legislator A for an advance against future royalties from sales of the Guidebook or for royalties from actual sales of the Guidebook would not constitute an honorarium prohibited by the Ethics Act. 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 A 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: Confidential Opinion, 11-003 June 28, 2011 Page 3 § 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 whichhe 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” 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 Confidential Opinion, 11-003 June 28, 2011 Page 4 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. In Baker, Opinion 91-004, we 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. In applying the relevant criteria to the submitted facts, it is clear that the publication of the Guidebook would be undertaken in State Legislator A’s private professional capacity as a B and not in his public capacity as a Member of the General Assembly. It is our determination that any payment of an advance against future royalties from sales of the Guidebook or royalties from actual sales of the Guidebook that would be legitimately intended as consideration for the value of the publication of the Guidebook would not constitute an “honorarium” as that term is defined by the Ethics Act, and State Legislator A would be permitted to accept such payment subject to the restrictions of Section 1103(a) of the Ethics Act. Cf., Confidential Opinion, 01-001. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. IV.CONCLUSION: As a Member of the [Chamber of the General Assembly], State Legislator A is a public official 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) State Legislator A, in his private capacity, is a B licensed to [engage in professional activities] in the Commonwealth; (2) State Legislator A has in the past been and is presently engaged in various activities related to his private profession in the C field; (3) before State Legislator A began serving in his current public capacity, he authored a book entitled [title of book] that was published in [year]; (4) State Legislator A also authored a number of articles on C subjects, spoke as a guest at several Ds, served as a faculty member and authored course materials for a number of Es for Bs, appeared on numerous broadcast programs to discuss C issues, and presented many seminars to the public on C matters; (5) at the present time, State Legislator A teaches accredited courses, including a course in F, as an adjunct instructor at a college in Pennsylvania; (6) State Legislator A proposes to co-author a book entitled [title of book] (hereinafter referred to as “the Guidebook”); (7) the Guidebook would be a [type of guide] to [certain subject matter] and would contain [certain content] accompanied with C analysis and generalized C counsel; (8) State Legislator A would not include any confidential information received through his holding public office in the Guidebook, and he would not use legislative resources such as personnel, equipment, supplies, or facilities to write or market the Guidebook; (9) the publishing contract for the Guidebook would provide for payment to State Legislator A of a modest advance against future royalties from sales of the Guidebook and royalties to be calculated based upon actual sales of the Guidebook as per the customary terms and conditions of the publishing house; and (10) State Legislator A has not accepted any payments for the Guidebook, you are advised as follows. Confidential Opinion, 11-003 June 28, 2011 Page 5 The publication of the Guidebook would be undertaken in State Legislator A’s private professional capacity as a B and not in his public capacity as a Member of the General Assembly. Any payment of an advance against future royalties from sales of the Guidebook or royalties from actual sales of the Guidebook that would be legitimately intended as consideration for the value of the publication of the Guidebook would not constitute an “honorarium” as that term is defined by the Ethics Act, and State Legislator A would be permitted to accept such payment subject to the restrictions of Section 1103(a) of the Ethics Act. The propriety of the proposed conduct has only been addressed under the Ethics Act. 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