Loading...
HomeMy WebLinkAbout14-006 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 Maria Feeley DATE DECIDED: 6/16/14 DATE MAILED: 7/2/14 14-006 This Opinion is issued in response to your letter of May 9, 2014, 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 prohibitions or restrictions upon a State Legislator serving in the \[Chamber of the General Assembly\], who is an A of the B of \[name of private educational institution\] (the “Institution”), with regard to receiving payment for teaching a course on Subject C at the Institution as a D, where: (1) the State Legislator would be treated by the Institution as an employee for tax purposes; (2) the State Legislator would receive \[amount\] for teaching the course, which he believes is below the compensation paid to other faculty at the Institution; and (3) the course would primarily focus on \[certain non-legislative topics\], and some of the class time would be devoted to \[certain non- legislative processes\]. 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. State Legislator E was first elected to the \[Chamber of the General Assembly\] in \[year\]. For \[number\] years prior to his legislative service, State Legislator E served as Public Official F for Political Subdivision G. State Legislator E also worked for Public Official H from \[year\] until \[year\]. State Legislator E received a \[type of academic degree\] in Subject I from the Institution in \[year\], and he is currently an A of the Institution’s B. The Institution has asked State Legislator E to serve as a D in the J in the \[certain semester\]. State Legislator E would teach a course on Subject C. The course would primarily focus on \[certain non- Confidential Opinion, 14-006 July 2, 2014 Page 2 legislative topics\], and some of the class time would be devoted to \[certain non-legislative processes\]. The class would meet for \[certain amount of time\]. State Legislator E would develop lectures, materials, and exams for the class, grade course work, and meet with students before or after class as necessary. The total preparation time per week for the course would be approximately two hours, not including class time. You state that State Legislator E would not include in course materials or his remarks to students during class any confidential information received through his legislative role and that he would not use legislative resources such as personnel, equipment, supplies, facilities, and the like to prepare his course materials. The Institution treats Ds as employees for tax purposes. Ds complete a W-4 when starting at the Institution in order to withhold federal and state income taxes from wages earned, and they receive a W-2 at the end of the year. You state that State Legislator E would receive \[amount\] for teaching the course, which he believes is below the compensation paid to other faculty at the Institution. 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), you assert that any compensation that State Legislator E would receive for teaching the course on Subject C at the Institution should be viewed as consideration for the value of the nonpublic professional services which he would be providing to the Institution. You argue that any compensation State Legislator E would receive for teaching the course would not be a prohibited honorarium based upon the following assertions: (1) The legislative debate as to the Ethics Act’s prohibition against honoraria indicates that the General Assembly did not intend to prohibit a public official or public employee from being hired to teach a course; (2) State Legislator E would be serving in the capacity of a D at an accredited educational institution; (3) State Legislator E would spend a substantial amount of time in preparing for and teaching the course; (4) State Legislator E would be speaking for \[certain amount of time\], such that this is not just a one-time appearance or presentation; (5) Teaching at a private university is a non-public occupation; (6) The compensation that State Legislator E would receive for teaching the course would be consideration for the value of his services provided to the Institution; and (7) Teaching the course would not be related to State Legislator E’s duties as a state legislator. Based upon the above submitted facts, you ask whether any compensation that State Legislator E would receive for teaching the aforesaid course on Subject C at the Institution would be considered an honorarium prohibited by the Ethics Act. By letter dated May 14, 2014, you were notified of the date, time and location of the executive meeting at which your request would be considered. Confidential Opinion, 14-006 July 2, 2014 Page 3 At the executive meeting on June 16, 2014, you appeared for the purpose of answering any questions of the Commission. 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. 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(a) of the Ethics Act does not prohibit public officials/public employees from having outside business activities or employment. However, subject to the statutory exclusions to the Ethics Act’s definition of the term “conflict” or “conflict of interest, 65 Pa.C.S. § 1102, the public official/public employee may not use the authority of his public Confidential Opinion, 14-006 July 2, 2014 Page 4 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 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 in particular the facts that: (1) State Legislator E would be treated by the Institution as an employee for tax purposes; (2) State Legislator E would receive \[amount\] for teaching the course, which he believes is below the compensation paid to other faculty at the Institution; and (3) the course would primarily focus on \[certain non-legislative topics\], and some of the course would be devoted to \[certain non-legislative processes\], 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 receiving the aforesaid Confidential Opinion, 14-006 July 2, 2014 Page 5 payment/compensation for teaching the aforesaid course on Subject C at the Institution as a D. Lastly, the propriety of the proposed conduct has only been addressed under the 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) State Legislator E was first elected to the \[Chamber of the General Assembly\] in \[year\]; (2) for \[number\] years prior to his legislative service, State Legislator E served as Public Official F for Political Subdivision G; (3) State Legislator E also worked for Public Official H from \[year\] until \[year\]; (4) State Legislator E received a \[type of academic degree\] in Subject I from \[name of private educational institution\] (the “Institution”) in \[year\], and he is currently an A of the Institution’s B; (5) the Institution has asked State Legislator E to serve as a D in the J in the \[certain semester\]; (6) State Legislator E would teach a course on Subject C; (7) the course would primarily focus on \[certain non-legislative topics\], and some of the class time would be devoted to \[certain non-legislative processes\]; (8) the class would meet for \[certain amount of time\]; (9) State Legislator E would develop lectures, materials, and exams for the class, grade course work, and meet with students before or after class as necessary; (10) the total preparation time per week for the course would be approximately two hours, not including class time; (11) State Legislator E would not include in course materials or his remarks to students during class any confidential information received through his legislative role, and he would not use legislative resources such as personnel, equipment, supplies, facilities, and the like to prepare his course materials; (12) the Institution treats Ds as employees for tax purposes; (13) Ds complete a W-4 when starting at the Institution in order to withhold federal and state income taxes from wages earned, and they receive a W-2 at the end of the year; and (14) State Legislator E would receive \[amount\] for teaching the course, which he believes is below the compensation paid to other faculty at the Institution, you are advised that the Ethics Act would not preclude State Legislator E from receiving the aforesaid payment/compensation for teaching the aforesaid course on Subject C at the Institution as a D. 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 In re: Confidential Opinion, No. 14-006 Date: July 2, 2014 CONCURRING OPINION I agree with the Commission’s conclusion in this Opinion. However, the Commission goes much further in its analysis than I would find necessary. The term “honorarium” is defined in the Public Official and Employee Ethics Act 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 ….” 65 Pa.C.S. § 1102. Payment for teaching any college level course is not a recognition of a published work, an appearance, a speech or a presentation as those terms are used to define an honorarium. A reasonable compensation for such teaching would be intended as consideration for the value of the services rendered and not an honorarium. Having determined that teaching a college level course does not fall within the initial portion of the definition of an honorarium, any further examination of a person’s qualifications to teach or whether or not such teaching is nonpublic occupational or professional in nature is irrelevant and unnecessary. Commissioner Mark R. Corrigan Commissioner Roger Nick joins in this Concurring Opinion.