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HomeMy WebLinkAbout12-572 Mutchler ADVICE OF COUNSEL October 24, 2012 Terry Mutchler, Esquire Executive Director Pennsylvania Office of Open Records Commonwealth Keystone Building th 400 North Street, 4 Floor Harrisburg, PA 17120-0225 12-572 Dear Ms. Mutchler: This responds to your letter of September 14, 2012, 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.C.S. § 1101 et seq., would impose any prohibitions or restrictions upon the Executive Director of the Pennsylvania Office of Open Records (“Office of Open Records”) with regard to signing a contract with a publishing house to publish a memoir that is focused on the Executive Director’s personal life when she was a journalist and campaign manager and is not related to the Commonwealth of Pennsylvania (“Commonwealth”), government, or the Office of Open Records. Facts: You request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. In 2008, Governor Edward G. Rendell appointed you to serve a six-year term as the Executive Director of the Office of Open Records. In 2004, you wrote a memoir (the “Memoir”) that focused on your personal life when you were a journalist for The Associated Press and later the campaign manager for your late partner, an Illinois Senator, between the years 1993 and 1998. Earlier this year, you obtained a literary agent who is contacting publishing houses to determine whether they would be interested in publishing the Memoir. You had no offers for a book contract pending as of the date you submitted your advisory request. You state that the Memoir is not related to the Commonwealth, government, or the Office of Open Records, other than noting that you are a native Pennsylvanian and that you were appointed as the Executive Director of the Office of Open Records by Mutchler, 12-572 October 24, 2012 Page 2 Governor Rendell. You further state that you filed a request for permission for supplemental employment, which is pending with the Commonwealth, in the event that you would have additional editing or writing to do in your off-hours. Based upon the above submitted facts, you ask whether the Ethics Act would impose any prohibitions or restrictions upon you with regard to signing a contract with a publishing house to publish the Memoir. 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 the Executive Director of the Office of Open Records, you are a public official/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 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: Mutchler, 12-572 October 24, 2012 Page 3 § 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. 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. Id. In applying the above provisions of the Ethics Act to your specific inquiry, you are advised as follows. Based upon the submitted fact that the Memoir is focused on your personal life as a journalist and campaign manager and is not related to the Commonwealth, government, or the Office of Open Records, payment from sale(s) of the Memoir that would be legitimately intended as consideration for the value of such publication would not constitute an “honorarium” as that term is defined by the Ethics Act. Cf., Confidential Opinion, 11-004; Confidential Opinion, 11-003. You are advised that you would be permitted to sign a contract with a publishing house to publish the Memoir and accept such payment subject to the condition that you would not use the authority of your position as the Executive Director of the Office of Open Records or confidential information received by holding such public position in furtherance of the writing, editing, publication, or sale of the Memoir. 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. Specifically not addressed herein is the applicability of the Governor’s Code of Conduct. Conclusion: Based upon the submitted facts that: (1) in 2008, Governor Edward G. Rendell appointed you to serve a six-year term as the Executive Director of the Office of Open Records; (2) in 2004, you wrote a memoir (the “Memoir”) that focused on Mutchler, 12-572 October 24, 2012 Page 4 your personal life when you were a journalist for The Associated Press and later the campaign manager for your late partner, an Illinois Senator, between the years 1993 and 1998; (3) earlier this year, you obtained a literary agent who is contacting publishing houses to determine whether they would be interested in publishing the Memoir; (4) you had no offers for a book contract pending as of the date you submitted your advisory request; (5) the Memoir is not related to the Commonwealth of Pennsylvania (“Commonwealth”), government, or the Office of Open Records, other than noting that you are a native Pennsylvanian and that you were appointed as the Executive Director of the Office of Open Records by Governor Rendell; and (6) you filed a request for permission for supplemental employment, which is pending with the Commonwealth, in the event that you would have additional editing or writing to do in your off-hours, you are advised as follows. As the Executive Director of the Office of Open Records, you are a public official/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 fact that the Memoir is focused on your personal life as a journalist and campaign manager and is not related to the Commonwealth, government, or the Office of Open Records, any payment from sale(s) of the Memoir that would be legitimately intended as consideration for the value of such publication would not constitute an “honorarium” as that term is defined by the Ethics Act. You would be permitted to sign a contract with a publishing house to publish the Memoir and accept such payment subject to the condition that you would not use the authority of your position as the Executive Director of the Office of Open Records or confidential information received by holding such public position in furtherance of the writing, editing, publication, or sale of the Memoir. 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