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Home My WebLink About14-008 Confidential OPINION OF THE COMMISSION Before: John J. Bolger, Chair Nicholas A. Colafella, Vice Chair Mark R. Corrigan Roger Nick Kathryn Streeter Lewis DATE DECIDED: 12/3/14 DATE MAILED: 12/4/14 14-008 This Opinion is issued in response to your letter of September 4, 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. 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 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 Confidential Opinion, 14-008 December 4, 2014 Page 2 legislative resources such as personnel, equipment, supplies, facilities, and the like to prepare his course materials. State Legislator E has not published any materials that would be used during his class instructions. 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) Teaching a multi-class course at an accredited institution of higher education would not constitute an “appearance,” “speech,” or “presentation” so as to fall within the statutory definition of the term “honorarium,” and, as noted above, State Legislator E has not published any materials that would be used during his class instructions; (2) 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; (3) State Legislator E would be serving in the capacity of a D at an accredited educational institution; (4) State Legislator E would spend a substantial amount of time in preparing for and teaching the course; (5) State Legislator E would be teaching for \[certain amount of time\], such that this is not just a one-time appearance or presentation; (6) Teaching at a private university is a non-public occupation; (7) The compensation that State Legislator E would receive for teaching the course would be consideration for the value of his nonpublic occupational/professional services provided to the Institution; and (8) 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. 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 Confidential Opinion, 14-008 December 4, 2014 Page 3 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 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. Confidential Opinion, 14-008 December 4, 2014 Page 4 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. In applying the first portion of the definition to the submitted facts, we hold that teaching a class at an accredited educational institution is not an “appearance,” “speech,” or “presentation” for purposes of Section 1103(d) of the Ethics Act. In determining whether the activity in a given instance is “teaching,” the Commission will consider whether the public official/public employee is performing duties for compensation in accordance with the standards and practices of the educational institution related to hiring of its teachers. In the instant matter, based upon the submitted facts, we conclude that the activity in question would constitute teaching a class at an accredited educational institution, and therefore you are advised 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 submitted facts, 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. Lastly, the propriety of the proposed conduct has only been addressed under the Confidential Opinion, 14-008 December 4, 2014 Page 5 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 class would meet for \[certain amount of time\]; (8) 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; (9) the total preparation time per week for the course would be approximately two hours, not including class time; (10) 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; (11) State Legislator E has not published any materials that would be used during his class instructions; (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 as follows. Teaching a class at an accredited educational institution is not an “appearance,” “speech,” or “presentation” for purposes of Section 1103(d) of the Ethics Act. In determining whether the activity in a given instance is “teaching,” the Commission will consider whether the public official/public employee is performing duties for compensation in accordance with the standards and practices of the educational institution related to hiring of its teachers. Based upon the submitted facts, the activity in question would constitute teaching a class at an accredited educational institution, and therefore 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, 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, Confidential Opinion, 14-008 December 4, 2014 Page 6 John J. Bolger Chair