HomeMy WebLinkAbout13-005-R 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: 2/6/14
DATE MAILED: 2/20/14
13-005-R
This Opinion vacates Confidential Opinion, 13-005, issued October 30, 2013, and
constitutes this Commission’s response to your request for a confidential advisory on
behalf of State Legislator E.
I.ISSUE:
Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. §
1101 et seq., would impose 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 teaching a course on Subject C at the
Institution as a D while serving on the Institution’s B, or receiving payment for teaching
such course, where:
(1) The State Legislator would be a bona fide non-tenured employee of
the Institution;
(2) The State Legislator would receive the same rate-of-pay received by
the other Ds at the Institution, specifically, [amount], as specified in
the applicable collective bargaining agreement of the Institution; and
(3) 90% of the substantive class periods of the course taught by the State
Legislator at the Institution would be dedicated to [a non-legislative
topic].
II.FACTUAL BASIS FOR DETERMINATION:
With the authorization of State Legislator E, you requested a confidential advisory
from this Commission on his behalf.
You previously submitted facts and questions that were summarized in Confidential
Confidential Opinion, 13-005-R
February 20, 2014
Page 2
Opinion, 13-005 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 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.
. . .
Confidential Opinion, 13-005-R
February 20, 2014
Page 3
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 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.
Confidential Opinion, 13-005 at 1-3.
Based upon our review of your advisory request, on October 30, 2013, we issued
Confidential Opinion, 13-005, which concluded, in pertinent part, as follows:
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.
. . .
Confidential Opinion, 13-005-R
February 20, 2014
Page 4
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.
Confidential Opinion, 13-005 at 6-7.
On November 22, 2013, you filed a Petition for Reconsideration of Confidential
Opinion No. 13-005 (“Petition for Reconsideration”). The Petition for Reconsideration
asserted: (1) that this Commission had made a material error of law in classifying the
wage State Legislator E would receive for teaching the aforesaid course as a prohibited
honorarium; and (2) that there were “new facts” which were not discovered by the exercise
of due diligence prior to submission of the advisory request and which might lead to
reversal or modification of Confidential Opinion, 13-005. The Petition for Reconsideration
included the following as new facts. The Institution employs Ds to teach courses in a
variety of topics. These Ds are paid a wage as compensation for their services and are
treated as employees for tax purposes. Federal and state income taxes are withheld, and
employees receive a W-4.
On November 27, 2013, we issued a Grant of Reconsideration as to Confidential
Opinion, 13-005 so that we could adequately consider new facts and arguments that you
wished to present.
On December 27, 2013, you submitted extensive additional information to this
Commission. You submitted additional facts, which include the following:
(1) State Legislator E would be a non-tenured employee of the Institution,
specifically, a W-2 temporary, non-tenured employee without benefits;
(2) State Legislator E would receive the same rate-of-pay received by the
other Ds at the Institution, specifically, [amount], as specified in the
applicable collective bargaining agreement of the Institution; and
(3) The course has been completed, and nine out of ten (or 90%) of the
substantive class periods of the course were dedicated to [a non-
legislative topic], and only one substantive class period involved a
legislative topic.
You also submitted a joint letter from M, which supports your position.
At the executive meeting on February 6, 2014, you appeared and offered
commentary, which may be fairly summarized as follows.
You contend that this Commission made a material error of law in classifying the
wage State Legislator E would receive for teaching the aforesaid course at the Institution
as an “honorarium.” You note the extensive time and preparation required of State
Legislator E in teaching the course. You assert that the payment State Legislator E would
receive for teaching the course would be consideration for the value of his services and
would be excluded from the Ethics Act’s definition of the term “honorarium.” You contend
that the legislative debate as to the Ethics Act’s prohibition against honoraria indicates that
the General Assembly did not intend to include wages paid in consideration for the value
of services as “honoraria.”
Confidential Opinion, 13-005-R
February 20, 2014
Page 5
You state that as a D at the Institution, State Legislator E would be treated like all
other Ds at the Institution, specifically, as a W-2 temporary, non-tenured employee without
benefits from whose compensation all applicable federal and state taxes would be
withheld, and who would receive a W-4 for tax purposes. You state that State Legislator E
would receive [amount], the amount which you previously indicated is specified in a
collective bargaining agreement of the Institution. Although you state that you have not
been able to obtain a copy of such collective bargaining agreement, you have provided a
printout from the Institution’s web site, which indicates that Ds are paid [amount].
Noting [certain restrictions], you contend that any course State Legislator E might
teach on [type of activity] would not be related to his public office.
You assert that the new facts you have provided, and particularly the new facts
regarding the form, nature, and tax treatment of the payment that would be provided to
State Legislator E for teaching the course, may lead to reversal or modification of
Confidential Opinion, 13-005. You state that due to the timing of the request for an
advisory and the discussions regarding the format and structure of the course, such new
facts were not discoverable by the exercise of due diligence prior to the submission of the
request for an advisory or prior to this Commission’s October 8, 2013, executive meeting.
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-R
February 20, 2014
Page 6
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-R
February 20, 2014
Page 7
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.
Based upon the totality of the submitted facts, and particularly in light of the new
facts that: (1) State Legislator E would be a bona fide non-tenured employee of the
Institution; (2) State Legislator E would receive the same rate-of-pay received by the other
Ds at the Institution, specifically, [amount], as specified in the applicable collective
bargaining agreement of the Institution; and (3) nine out of ten (or 90%) of the substantive
class periods of the course taught by State Legislator E at the Institution would be
dedicated to [a non-legislative topic] and only one substantive class period would involve a
legislative topic, we conclude that the aforesaid compensation to be paid to State
Legislator E for teaching the aforesaid course would not constitute an honorarium because
it would not be “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.” 65 Pa.C.S. § 1102
(definition of “honorarium”).
Accordingly, based upon the totality of the submitted facts, you are advised that the
Ethics Act would not preclude State Legislator E from teaching the aforesaid course on
Subject C at the Institution as a D while serving as an A of the Institution’s B. Additionally,
the Ethics Act would not prohibit State Legislator E from receiving the aforesaid
payment/compensation for teaching such course.
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; (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; (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]”; (13) State Legislator E would be a bona fide non-tenured
employee of the Institution; (14) State Legislator E would receive the same rate-of-pay
received by the other Ds at the Institution, specifically, [amount], as specified in the
applicable collective bargaining agreement of the Institution; and (15) nine out of ten (or
90%) of the substantive class periods of the course taught by State Legislator E at the
Confidential Opinion, 13-005-R
February 20, 2014
Page 8
Institution would be dedicated to [a non-legislative topic] and only one substantive class
period would involve a legislative topic, you are advised as follows.
The Ethics Act would not preclude State Legislator E from teaching the aforesaid
course on Subject C at the Institution as a D while serving as an A of the Institution’s B.
Additionally, the Ethics Act would not prohibit State Legislator E from receiving the
aforesaid payment/compensation for teaching such course.
Confidential Opinion, 13-005, issued October 30, 2013, is vacated.
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