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Home My WebLink About15-523 Nesbit ADVICE OF COUNSEL March 25, 2015 Honorable Tedd C. Nesbit State Representative Pennsylvania House of Representatives P.O. Box 202008 Harrisburg, PA 17120-2008 15-523 Dear Representative Nesbit: This responds to your letter dated February 17, 2015, received February 25, 2015, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”). 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 Member of the Pennsylvania House of Representatives with regard to submitting a weekly news column to a newspaper with circulation in the Member’s legislative district, where: (1) the Member represents the newspaper in his private practice as an attorney; (2) the Member would not be paid or receive any compensation for the column; and (3) the column would be distributed to other media news sources to use in their publications if they would desire to do so. Facts: As a Member of the Pennsylvania House of Representatives (“House of Representatives”), you request an advisory from the Commission based upon the following submitted facts. In your private practice as an attorney, you represent a newspaper named the “Record Argus” (the “Newspaper”), which is circulated in your legislative district. You are considering submitting a weekly news column (the “Column”) to the Newspaper. You state that you would not be paid or receive any compensation for the Column and that the Column would be distributed to other media news sources to use in their publications if they would desire to do so. You seek guidance as to whether the Ethics Act would impose any prohibitions or restrictions upon you with regard to submitting the Column to the Newspaper. 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, the Commission does not engage in an Nesbit, 15-523 March 25, 2015 Page 2 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. As a Member of the House of Representatives, you are 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 which he 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 is prohibited from using the authority of public office/employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official/public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family 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. Sections 1103(b) and 1103(c) of the Ethics Act, 65 Pa.C.S. §§ 1103(b), (c), provide in part that no person shall offer or give to a public official/public employee Nesbit, 15-523 March 25, 2015 Page 3 anything of monetary value and no public official/public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official/public employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. 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. In applying the above provisions of the Ethics Act to your inquiry, you are advised that neither Section 1103(a) nor Section 1103(d) of the Ethics Act would be implicated where you would not receive any private pecuniary benefit or payment as a result of submitting the Column to the Newspaper. Therefore, based upon the submitted facts—and in particular, the submitted fact that you would not be paid or receive any compensation for the Column—you are advised that the Ethics Act would not prohibit you from submitting the Column to the Newspaper. The propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: As a Member of the Pennsylvania House of Representatives, you are 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) in your private practice as an attorney, you represent a newspaper named the “Record Argus” (the “Newspaper”), which is circulated in your legislative district; (2) you are considering submitting a weekly news column (the “Column”) to the Newspaper; and (3) you would not be paid or receive any compensation for the Column, and the Column would be distributed to other media news sources to use in their publications if they would desire to do so, you are advised as follows. Neither Section 1103(a) nor Section 1103(d) of the Ethics Act would be implicated where you would not receive any private pecuniary benefit or payment as a result of submitting the Column to the Newspaper. Therefore, based upon the submitted facts—and in particular, the submitted fact that you would not be paid or receive any compensation for the Column—you are advised that the Ethics Act would not prohibit you from submitting the Column to the Newspaper. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Nesbit, 15-523 March 25, 2015 Page 4 Pursuant to Section 1107(11) of the Ethics Act, an Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, provided the requester has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. This letter is a public record and will be made available as such . Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717-787-0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Robin M. Hittie Chief Counsel