HomeMy WebLinkAbout14-007 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: 9/30/14
DATE MAILED: 10/8/14
14-007
This Opinion is issued in response to your letter of June 20, 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 A with regard to: (1) entering into a contract with a publisher for the purpose of
authoring a non-fiction book which would be an account of his public and private life; or (2)
receiving payment under the contract for authoring such book.
II.FACTUAL BASIS FOR DETERMINATION:
You have been authorized by State Legislator B to request a confidential advisory
from this Commission on his behalf. You have submitted facts that may be fairly
summarized as follows.
State Legislator B is a resident of \[name of county\], Pennsylvania, and he was first
elected to the A in \[month, year\]. Prior to his election to the A, State Legislator B earned a
bachelor’s degree in C with a minor in D from \[name of educational institution\].
You state that State Legislator B grew up in an E and was F in a G with Hs. Both as
an I and a J, State Legislator B was an active K of the L.
On \[date\], State Legislator B \[performed a certain action\] as an M. State Legislator
B is \[number\] of \[number\] N Members of the A.
State Legislator B was approached by a number of publishers requesting that he
enter into a contract to author a non-fiction book which would be an account of his life in
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October 8, 2014
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an O, his experiences as a P M, and the impact that being N has had on him, both
personally and professionally. You state that portion(s) of the proposed book would relate
to his experiences as a State Legislator but would not include any confidential information
received through his holding public office. You further state that State Legislator B would
not use legislative resources such as personnel, equipment, supplies, facilities, and the
like to prepare the proposed book. State Legislator B would receive compensation for his
efforts pursuant to the contract.
Based upon the above submitted facts, you pose the following questions:
(1) Whether the Ethics Act would prohibit State Legislator B from entering into a
contract with a publisher for the purpose of authoring a non-fiction book
which would be an account of his public and private life; and
(2) Whether any payment or compensation that State Legislator B would receive
from a publisher pursuant to a contract for authoring such book would be
considered an honorarium prohibited by the Ethics Act.
By letters dated August 12, 2014, and September 22, 2014, and by email dated
September 26, 2014, you were notified of the date, time and location of the executive
meeting at which your request would be considered.
On September 11, 2014, this Commission received your letter brief, in which you
present the following points.
You contend that any payment or compensation State Legislator B would receive for
authoring the aforesaid book would be consideration for the value of his services. You
represent that the portions of the book relating to State Legislator B’s experiences as a
State Legislator would be only a fraction of the overall work encompassing both his public
and private life and that in those portions, the General Assembly would be more like a
“backdrop” against which he would describe his interactions with Members of the General
Assembly and staff on a personal and professional level than the story itself. You contend
that any payment or compensation State Legislator B would receive for authoring the book
would be excluded from the Ethics Act’s definition of the term “honorarium.”
At the executive meeting on September 30, 2014, you appeared for the purpose of
answering any questions of this 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 this regard, it is noted that
the submitted facts do not include the contractual terms by which State Legislator B would
be compensated.
In his capacity as a State Legislator serving in the A, State Legislator B is a public
official subject to the provisions of the Ethics Act.
Section 1103(a) of the Ethics Act provides:
§ 1103. Restricted activities
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October 8, 2014
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(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.
Subject to the statutory exclusions to the Ethics Act’s definition of the term “conflict”
or “conflict of interest, 65 Pa.C.S. § 1102, a 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
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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.
Having established the above general principles, you are advised as follows.
Based upon the totality of the submitted facts, and subject to the condition that the
transaction in question would be an “arms-length” marketplace transaction for
commercially reasonable terms, the compensation that State Legislator B would receive
from such publisher for authoring the aforesaid book about his public and private life 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”). Based upon the
totality of the submitted facts and subject to the aforesaid condition, you are advised that
the Ethics Act would not preclude State Legislator B from entering into a contract with such
publisher for the purpose of authoring the aforesaid book about his public and private life
or receiving payment from such publisher for authoring the aforesaid book about his public
and private life.
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.
IV.CONCLUSION:
As a State Legislator serving in the A, State Legislator B 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 B is a resident of \[name of
county\], Pennsylvania, and he was first elected to the A in \[month, year\]; (2) prior to his
election to the A, State Legislator B earned a bachelor’s degree in C with a minor in D from
\[name of educational institution\]; (3) State Legislator B grew up in an E and was F in a G
with Hs; (4) both as an I and a J, State Legislator B was an active K of the L; (5) on \[date\],
State Legislator B \[performed a certain action\] as an M; (6) State Legislator B is \[number\]
of \[number\] N Members of the A; (7) State Legislator B was approached by a number of
publishers requesting that he enter into a contract to author a non-fiction book which would
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October 8, 2014
Page 5
be an account of his life in an O, his experiences as a P M, and the impact that being N
has had on him, both personally and professionally; (8) portion(s) of the proposed book
would relate to his experiences as a State Legislator but would not include any confidential
information received through his holding public office; (9) the portions of the book relating
to State Legislator B’s experiences as a State Legislator would be only a fraction of the
overall work encompassing both his public and private life, and in those portions, the
General Assembly would be more like a “backdrop” against which he would describe his
interactions with Members of the General Assembly and staff on a personal and
professional level than the story itself; (10) State Legislator B would not use legislative
resources such as personnel, equipment, supplies, facilities, and the like to prepare the
proposed book; and (11) State Legislator B would receive compensation for his efforts
pursuant to the contract, you are advised as follows.
Based upon the totality of the submitted facts and subject to the condition that the
transaction in question would be an “arms-length” marketplace transaction for
commercially reasonable terms, the compensation that State Legislator B would receive
from such publisher for authoring the aforesaid book about his public and private life 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”). Based upon the
totality of the submitted facts and subject to the aforesaid condition, you are advised that
the Ethics Act would not preclude State Legislator B from entering into a contract with such
publisher for the purpose of authoring the aforesaid book about his public and private life
or receiving payment from such publisher for authoring the aforesaid book about his public
and private life.
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