HomeMy WebLinkAbout13-005 Confidential
OPINION OF THE COMMISSION
Before: John J. Bolger, Chair
Nicholas A. Colafella, Vice Chair
Raquel K. Bergen
Mark R. Corrigan
Roger Nick
Kathryn Streeter Lewis
DATE DECIDED: 10/8/13
DATE MAILED: 10/30/13
13-005
This Opinion is issued in response to your letter of July 26, 2013, 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 State Legislator serving
in the [Chamber of the General Assembly], who is an A of the B of [name of educational
institution] (the “Institution”), with regard to: (1) teaching a course on Subject C at the
Institution as a D while serving on the Institution’s B; or (2) receiving payment for teaching
such course.
II.FACTUAL BASIS FOR DETERMINATION:
You have been authorized by State Legislator E to request a confidential advisory
from this Commission on his behalf. You have submitted facts that may be fairly
summarized as follows.
Public Official F appointed State Legislator E to serve a term as an A of the B of the
Institution from [date] through [date]. State Legislator E does not receive any
compensation for his service on the Institution’s B.
State Legislator E received a [type of academic degree] in Subject G from [name of
educational institution] in [year]. Prior to his legislative service, State Legislator E worked
for [number] years in Field H for Business I. During his career at Business I, State
Legislator E taught courses on the world of Field H, including Js and Ks.
The Institution approached State Legislator E, who previously guest lectured at the
Institution on Subject L, and asked him to serve as a D during the [certain semester]. State
Confidential Opinion, 13-005
October 30, 2013
Page 2
Legislator E would teach a new course in Subject C which would be a basic guide to
[certain topic]. The class would meet for [certain amount of time]. State Legislator E would
develop lectures, activities, materials, exams, essay requirements, and grading standards
for the course, and he would make himself available to answer student questions and meet
with students about their class work, exams, or projects. It is anticipated that the total
preparation time per week for the course would be approximately five to ten hours, not
including actual class time. You state that State Legislator E would not include in course
materials or lectures any confidential information received through his holding public office
and that he would not use legislative resources such as personnel, equipment, supplies,
facilities, and the like to prepare his course materials or lesson plans.
You contend that State Legislator E’s teaching position at the Institution would be
only tangentially related to his duties as a state legislator. You further contend that
“Although [State Legislator E] is qualified to teach the [Subject C] course due to his
participation in the Pennsylvania political system, his legislative service is not directly
related to the work necessary to prepare for and teach the course at [the Institution].” July
26, 2013, advisory request letter, at 3.
You note that Section 1103(d) of the Ethics Act, 65 Pa.C.S. § 1103(d), provides that
“No public official or public employee shall accept an honorarium.” Citing the Ethics Act’s
definition of the term “honorarium” (see, Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102)
and various Commission advisories, you assert that any compensation that State
Legislator E would receive for teaching the Subject C course at the Institution should be
viewed as consideration for the value of the nonpublic professional services which he
would be providing to the Institution and its students.
Based upon the above submitted facts, you pose the following questions:
(1) Whether the Ethics Act would prohibit State Legislator E from teaching a
course on Subject C at the Institution as a D while serving as an A of the
Institution’s B; and
(2) Whether any payment or compensation that State Legislator E would receive
for teaching such course at the Institution would be considered an
honorarium prohibited by the Ethics Act.
By letter dated September 4, 2013, you were notified of the date, time and location
of the executive meeting at which your request would be considered.
By letter dated September 30, 2013, you stated that State Legislator E has begun
teaching the aforesaid course at the Institution but has not accepted any compensation for
his services pending this Commission’s decision as to his advisory request.
At the executive meeting on October 8, 2013, you and other attorneys from your
office appeared and offered commentary, which may be fairly summarized as follows.
It is your understanding that prior to running for the Legislature, State Legislator E
did not serve in any other public capacity. You stated that the course he is teaching at the
Institution is at the honors-level and is on the specific subject, [specific subject within
Subject C]. You stated that the course will be for [certain amount of time], which is a
different time period than was set forth in the advisory request letter. You stated that you
are not aware of the exact amount that State Legislator E would be paid for teaching the
course. One of the other attorneys from your office characterized such compensation as
“a regular pay that all other [Ds] would be getting paid.” The latter attorney also stated,
without elaboration, that State Legislator E “has experience with [type of activity].”
You and/or the aforesaid attorneys from your office argued that any compensation
Confidential Opinion, 13-005
October 30, 2013
Page 3
State Legislator E would receive for teaching the course would not be a prohibited
honorarium based upon the following assertions:
(1) State Legislator E would be serving in the capacity of a D at an accredited
educational institution;
(2) Teaching the course would involve significant preparation time;
(3) State Legislator E would be speaking for [certain amount of time], such that
this is not just a one-time appearance;
(4) Teaching is a professional service;
(5) State Legislator E would be providing the services that professors provide,
and any compensation for teaching the course would be in consideration for
the value of such services; and
(6) Teaching the course would be undertaken in State Legislator E’s private
professional capacity and would be only tangentially related to his public
position.
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.
In his capacity as a State Legislator serving in the [Chamber of the General
Assembly], State Legislator E is a public official subject to the provisions of the Ethics Act.
We parenthetically note that in his capacity as an A of the B of the Institution, State
Legislator E is not a public official subject to the Ethics Act. See, [cites].
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
Confidential Opinion, 13-005
October 30, 2013
Page 4
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(a) of the Ethics Act does not prohibit public officials/public employees
from having outside business activities or employment. However, the public official/public
employee may not use the authority of his public position--or confidential information
obtained by being in that position--for the advancement of his own private pecuniary
benefit or that of a business with which he is associated. To the extent the activities of a
state legislator would relate to “legislative actions” (introducing, considering, debating,
voting, enacting, adopting, or approving legislation), they would be constitutionally
controlled and exempt from the purview of the Ethics Act and the State Ethics Commission.
See, Corrigan, Opinion 87-001.
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.
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. Fiorello,
Order No. 1363; Confidential Opinion, 01-001.
The statutory definition of "honorarium" generally includes payments that are made
in recognition of speaking engagements/presentations, appearances, and published
Confidential Opinion, 13-005
October 30, 2013
Page 5
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. Fiorello, supra; Confidential Opinion, 01-001.
In considering the first portion of the definition, we note that the 1989 legislative
debate regarding the honorarium prohibition recognized that a lecturer or part-time
professor could be viewed as making speeches, appearances, and presentations
(comments of Representative Reber, Legislative Journal of House, 1989 Session,
February 14, 1989, at 259). While the prime sponsor, Representative Blaum, stated his
view that being “hired” to teach a course would be permissible as opposed to giving a
speech and expecting to be paid for it, and that in his opinion, it would be permissible for a
legislator to be paid to be a guest lecturer at a college or to teach a course on practical
politics even though the legislator’s expertise was derived from being in the Legislature
(Legislative Journal of House, 1989 Session, February 14, 1989, at 261), Representative
Blaum emphasized that his opinions were only his opinions, that his opinions might differ
from those of other legislators, and that the best thing for a legislator to do before
accepting a payment for a speech, appearance, or presentation would be to contact this
Commission for a ruling (Legislative Journal of House, 1989 Session, February 15, 1989,
at 309).
As the administrative agency tasked with making such rulings under the Ethics Act,
it is our view that the teaching of a course typically does involve speeches, appearances
and presentations, and may include published works. Indeed, in your commentary
provided at the October 8, 2013, executive meeting, you stated that State Legislator E
would be “speaking” for [certain amount of time], such that this is not just a one-time
“appearance.” In this case, per the submitted facts, State Legislator E would be preparing
lectures, activities, materials, exams, essay requirements, and grading standards for the
course, and he would make himself available to answer student questions and meet with
students about their class work, exams, or projects. Such activities would necessarily
include speeches, appearances and presentations and would fall squarely within the first
portion of the definition of the term “honorarium.”
Any argument that the honorarium prohibition only applies if there is a “one-time”
speech, presentation or appearance has no merit based upon the express language of the
statutory definition of the term “honorarium.” On its face, the definition of the term
“honorarium” specifically includes a payment made in recognition of multiple published
works, appearances, speeches, and presentations: “Payment made in recognition of
published works, appearances, speeches and presentations….” 65 Pa.C.S. § 1102
(Definition of “honorarium”) (Emphasis added). Furthermore, it would be an absurd
interpretation of the honorarium prohibition to base its applicability upon the number of
appearances, speeches, and/or presentations encompassed by particular payment(s).
Likewise, we reject the view that the honorarium prohibition may be circumvented by
“hiring” a public official/public employee to teach. Under Pennsylvania law, form is not
elevated over substance, Baehr Brothers v. Commonwealth of Pennsylvania, 487 Pa. 233,
409 A.2d 326 (1979), nor is the form of such an arrangement elevated over the applicable
statutory definition. Cf., Fiorello, supra.
Certainly, there are circumstances where compensation to a public official/public
employee for teaching would not constitute a prohibited honorarium, and the statutory
definition of “honorarium” itself provides the test that we are to follow for determining when
payments are allowed. Specifically, the statutory definition of “honorarium” excludes a
payment for published work(s), appearance(s), speech(es), and presentation(s) when both
of the following criteria are met: (1) the payment is legitimately intended as consideration
for the value of such services; and (2) the services are undertaken in the public
official's/public employee's private professional or occupational capacity and are not
Confidential Opinion, 13-005
October 30, 2013
Page 6
related to the public position. Fiorello, supra; 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.
In applying these criteria in Baker, we held that a Senator with a Bachelor’s degree
in Political Science as well as a Master’s degree and Ph.D. in Government, who was an
assistant professor and faculty associate, taught political science at Temple University,
authored/co-authored numerous publications involving political science and government,
and had previously served as a panelist or speaker at several professional and civic
meetings and conferences, would not be prohibited from accepting a $500 fee for speaking
as an academic expert to marketing representatives on the subject of legislative priorities
for local government at a seminar where the marketing representatives were meeting with
academics, state and local officials, and private sector executives. We determined that
under the factual circumstances, the payment would be nonpublic occupational or
professional in nature and not an honorarium. Baker, supra.
In Confidential Opinion, 01-001, we determined that Section 1103(d) of the Ethics
Act would not prohibit a member of a licensing board from accepting payments legitimately
intended as consideration for the member's services relative to speeches, appearances,
presentations, published works, or participation on a test development committee where
such activities would be undertaken in the member's professional capacity and would be
unrelated to the member's public position. We held that under the factual circumstances,
such payments would not constitute "honoraria" under the definition of the Ethics Act and
could be accepted subject to the restrictions of Section 1103(a) of the Ethics Act.
In this case, based upon the submitted facts, you are advised that although the
Ethics Act would not preclude State Legislator E from teaching a course on Subject C at
the Institution as a D while serving as an A of the Institution’s B, the Ethics Act would
prohibit State Legislator E from receiving payment/compensation for teaching such course.
In applying the relevant criteria to the submitted facts, the necessary conclusion is
that State Legislator E’s activity of teaching the course on Subject C at the Institution
would be related to his public position as a State Legislator serving in the [Chamber of the
General Assembly]. State Legislator E does not hold an academic degree in Subject C,
his private occupational experience prior to his legislative service was not in the field of
Subject C, and his prior experience in teaching/lecturing was not on the topic of Subject C.
Indeed, based upon the submitted facts, the only professional qualification of State
Legislator E for teaching a course in the area of Subject C is his participation in the
Pennsylvania political system in his public position as a State Legislator serving in the
[Chamber of the General Assembly].
Accordingly, any payment that State Legislator E would receive for teaching the
course on Subject C at the Institution would constitute an “honorarium” as that term is
defined by the Ethics Act, and State Legislator E would be prohibited from accepting such
payment pursuant to Section 1103(d) of the Ethics Act.
Lastly, the propriety of the proposed conduct has only been addressed under the
Confidential Opinion, 13-005
October 30, 2013
Page 7
Ethics Act.
IV.CONCLUSION:
As a State Legislator serving in the [Chamber of the General Assembly], State
Legislator E 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) Public Official F appointed State Legislator
E to serve a term as an A of the B of [name of educational institution] (the “Institution”)
from [date] through [date]; (2) State Legislator E does not receive any compensation for his
service on the Institution’s B; (3) State Legislator E received a [type of academic degree] in
Subject G from [name of educational institution] in [year]; (4) prior to his legislative service,
State Legislator E worked for [number] years in Field H for Business I; (5) during his career
at Business I, State Legislator E taught courses on the world of Field H, including Js and
Ks; (6) the Institution approached State Legislator E, who previously guest lectured at the
Institution on Subject L, and asked him to serve as a D during the [certain semester]; (7)
State Legislator E would teach a new course in Subject C which would be a basic guide to
[certain topic]; (8) the class would meet for [certain amount of time]; (9) State Legislator E
would develop lectures, activities, materials, exams, essay requirements, and grading
standards for the course, and he would make himself available to answer student
questions and meet with students about their class work, exams, or projects; (10) the total
preparation time per week for the course would be approximately five to ten hours, not
including actual class time; (11) State Legislator E would not include in course materials or
lectures any confidential information received through his holding public office, and he
would not use legislative resources such as personnel, equipment, supplies, facilities, and
the like to prepare his course materials or lesson plans; and (12) you contend that
“Although [State Legislator E] is qualified to teach the [Subject C] course due to his
participation in the Pennsylvania political system, his legislative service is not directly
related to the work necessary to prepare for and teach the course at [the Institution],” you
are advised as follows.
Based upon the submitted facts, although the Ethics Act would not preclude State
Legislator E from teaching a course on Subject C at the Institution as a D while serving as
an A of the Institution’s B, the Ethics Act would prohibit State Legislator E from receiving
payment/compensation for teaching such course. Any payment that State Legislator E
would receive for teaching the course on Subject C at the Institution would constitute an
“honorarium” as that term is defined by the Ethics Act, and State Legislator E would be
prohibited from accepting such payment pursuant to Section 1103(d) 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.
By the Commission,
John J. Bolger
Chair
Commissioner Roger Nick dissents.
In re: Confidential Opinion, No. 13-005 Date: October 30, 2013
DISSENTING OPINION
I dissent from the Majority Opinion. The Ethics Act defines “honorarium” as
“[p]ayment 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.
B’LD defines “honorarium” as in the civil law, an honorary or free
LACKS AW ICTIONARY
gift; a gratuitous payment, as distinguished from hire or compensation for service; a
lawyer’s or counsellor’s fee.
Counsel for the Requestor states that the Requestor was approached by [name of
educational institution] (the “Institution”) to serve as a D during the [certain semester].
This is a new class and will require the development of a new curriculum, including class
lectures, activities and class materials, as well as exams, essay requirements and grading
standards. He will also be available to meet with students about their class work, exams or
projects. Preparation time per week is estimated at approximately 5-10 hours, not
including actual class time. The duration of the class will be [certain amount of time].
The Majority Opinion has determined that teaching this course would constitute an
“honorarium” under the Ethics Act and acceptance of any payment would be banned. I
respectfully disagree with this conclusion.
I do not believe teaching a [certain amount of time] course at the [type of
educational institution] level constitutes “…published works, appearances, speeches and
presentations ….” I believe payment for teaching this course is “…intended as
consideration for the value of such services …” which is an exclusion to the definition of
honorarium. If one determines that teaching of this course does not meet the Ethics Act
definition of any honorarium, then any discussion as to the qualifications of a person to
teach the course becomes irrelevant and a moot point.
I would also note I do not believe the teaching of this course meets the commonly
used, and widely accepted, legal definition of the term “honorarium” as an “…honorary or
free gift; a gratuitous payment, as distinguished from hire or compensation for service ….”
For the reasons cited above, I do not concur with the Majority Opinion that teaching
a [certain amount of time], semester long course at an accredited [type of educational
institution] meets the definition of a banned honorarium under the Ethics Act.
Commissioner Roger Nick