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Home My WebLink About15-001 Witt OPINION OF THE COMMISSION Before: Nicholas A. Colafella, Chair Mark R. Corrigan Roger Nick Kathryn Streeter Lewis Maria Feeley Melanie DePalma Brian Westmoreland DATE DECIDED: 1/28/15 DATE MAILED: 2/12/15 15-001 Timothy J. Witt, Esquire Watson Mundorff Brooks & Sepic, LLP 720 Vanderbilt Road Connellsville, PA 15425-6218 Dear Mr. Witt: This Opinion is issued in response to your letter dated September 16, 2014, by which you requested an advisory from the Pennsylvania State Ethics 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 city mayor and members of a city council with regard to participating as to a proposed arrangement to support nonprofit organizations in the city by which: (1) the city council would approve a list of nonprofit organizations located or operating within the city; and (2) businesses or organizations could then make a donation to one of the nonprofit organizations on the list approved by the city council, after which the city mayor would wear a shirt bearing the name and logo of the donor business or organization at a public meeting of the city council. II.FACTUAL BASIS FOR DETERMINATION: As City Solicitor for the City of Connellsville (“City”), located in Fayette County, Pennsylvania, you have been authorized by City Mayor Gregory Lincoln (“Mayor Lincoln”) and certain other individuals who are Members of City Council to request an advisory Witt, 15-001 2/12/15 Page 2 opinion from the Pennsylvania State Ethics Commission. You have submitted facts, the material portion of which may be fairly summarized as follows. The City Mayor is a Member of City Council. City Council meetings have at times been televised by a local cable provider. It has been proposed that the City support nonprofit organizations in the City under an arrangement (the “Proposed Arrangement”) by which City Council would approve a list of nonprofit organizations located or operating within the City. Businesses or organizations could then make a donation to one of the nonprofit organizations on the list approved by City Council, after which the City Mayor would wear a shirt bearing the name and logo of the donor business or organization at a public meeting of City Council. All donations would be required to be paid prior to the City Council meeting, with documentation of such payment provided to the City. All donations would be paid and given directly to the nonprofit organization, and no money or other consideration would be received or held by the City or the City Mayor. Based upon the above submitted facts, you ask whether the Proposed Arrangement would result in a conflict of interest or other violation under the Ethics Act, and if not, whether there would be any safeguards or best practices that would further insulate the Proposed Arrangement from resulting in violations of the Ethics Act. By letter dated December 17, 2014, you were notified of the date, time and location of the public meeting at which your request would be considered. 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. Mayor Lincoln and the other City Council Members on whose behalf you have inquired are public officials subject to the provisions of the Ethics Act. 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 Witt, 15-001 2/12/15 Page 3 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 published works, appearances, and speaking engagements/presentations, 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. This Commission has determined that the prohibition against honoraria applies even when the payment is proposed to be made to a nonprofit organization/charity. Crompton, Opinion 09-002; Richardson, Opinion 93-006. In the instant matter, under the Proposed Arrangement, the Mayor would advertise a business or organization that would make a payment to a nonprofit organization, included on the list approved by City Council, by appearing at a public meeting of City Council wearing a shirt bearing the name and logo of such donor (hereinafter also referred to as “a donor shirt”). We conclude that the Mayor’s appearance at a public meeting of City Council while wearing a donor shirt would constitute an “appearance” or “presentation” undertaken in his public capacity and related to his public position. Therefore, a payment made in recognition of the Mayor wearing a donor shirt at a public meeting of City Council would constitute an honorarium prohibited by Section 1103(d) of the Ethics Act. We parenthetically note that additional conduct—such as, for example, urging those in attendance at the public meeting to patronize the donor business or organization—could provide additional support for our conclusion that the aforesaid payment to the nonprofit organization would constitute an honorarium. Based upon our determination that payments under the Proposed Arrangement would constitute prohibited honoraria, and would therefore cause the Mayor to run afoul of Section 1103(d) of the Ethics Act, there is no need to further address your inquiry. 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. Specifically not addressed herein is the applicability of the Third Class City Code. IV.CONCLUSION: City of Connellsville (“City”) Mayor Gregory Lincoln (“Mayor Lincoln”) and the other Members of City Council on whose behalf you have inquired are public officials 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) the City Mayor is a Member of City Council; (2) City Council meetings have at times been televised by a local cable provider; (3) it has been proposed that the City support nonprofit organizations in the City under an arrangement (the “Proposed Arrangement”) by which City Council would approve a list of nonprofit organizations located or operating within the City; (4) businesses or organizations could then make a donation to one of the nonprofit organizations on the list approved by City Council, after which the City Mayor would wear a shirt bearing the name Witt, 15-001 2/12/15 Page 4 and logo of the donor business or organization (hereinafter referred to as “a donor shirt”) at a public meeting of City Council; (5) all donations would be required to be paid prior to the City Council meeting, with documentation of such payment provided to the City; and (6) all donations would be paid and given directly to the nonprofit organization, and no money or other consideration would be received or held by the City or the City Mayor, you are advised as follows. The Mayor’s appearance at a public meeting of City Council while wearing a donor shirt would constitute an “appearance” or “presentation” undertaken in his public capacity and related to his public position. Therefore, a payment made in recognition of the Mayor wearing a donor shirt at a public meeting of City Council would constitute an honorarium prohibited by Section 1103(d) of the Ethics Act and would cause the Mayor to run afoul of Section 1103(d) of the Ethics Act. Additional conduct—such as, for example, urging those in attendance at the public meeting to patronize the donor business or organization—could provide additional support for this Commission’s conclusion that the aforesaid payment to the nonprofit organization would constitute an honorarium. Based upon the above, there is no need to further address your inquiry. The propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(10), 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, Nicholas A. Colafella Chair