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HomeMy WebLinkAbout16-564 MetzgerSTATE ETHICS COMMISSION 309 FINANCE BUILDING PO: BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL December 2, 2016 To the Requester: Mr. John E. Metzger 16 -564 Dear Mr. Metzger: This responds to your letter dated October 6, 2016, 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.7S. § 1101 et seq., would impose prohibitions or restrictions upon a former Executive Director of the Pennsylvania Liquor Control Board ( "PLCB ") with regard to receiving payment in the form of honoraria for giving lectures to classes as a visiting professor at a university that holds several licenses issued by the PLCB. Facts: You request an advisory from the Commission based upon submitted of ct�hat may be fairly summarized as follows. At the time that, you submitted your inquiry, you were employed as the Executive Director of the PLCB. You stated that you would be retiring from your employment with the PLCB effective November 4, 2016. Prior to joining the PLCB in 2010, you gave lectures to classes as a visiting professor at the Smea1 College of Business at the Pennsylvania State University ("the University ")). You stated that you received payment in the form of honoraria of $1000 per class lectured. You stated that once you joined the PLCB, you performed your lecturing activities with the University without remuneration. The University holds several licenses issued by the PLCB, including two hotel liquor licenses and a public venue license. The University may be a vendor to the Commonwealth. Based upon the above submitted facts, you ask when you would be permitted to resume receiving honoraria for giving lectures to classes as a visiting professor at the University. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of e 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 en age 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 FAX: (717) 787 -0806 0 Web Site: www.ethics.state.pa,us 0 e -mail: ethicsPstate.pa.us Metzger, 16 -564 December 2, 2016 Page 2 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. It is further initially noted that this Advice is limited to addressing the narrow question posed. As the Executive Director of the PLCB, you would be considered a public official /public employee and an executive -level State employee subject to the provisions of the Ethics Act. Section 1103(d) of the Ethics Act prohibits a public official/public employee from accepting an honorarium: § 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 the narrow question posed, you are advised as follows. Section 1103(d) of the Ethics Act, which only applies while an individual holds a position of public office or public employment, woud not apply to restrict you from receiving honoraria for giving lectures to classes as a visiting professor at the University following termination of your employment with the PLCB. It is parenthetically noted that under certain circumstances, payment made for teaching a class at an accredited educational institution would not constitute an honorarium prohibited by Section 1103(d) of the Ethics Act. See, Confidential Opinion 14 -008. Lastly, 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. Conclusion: As the Executive Director of the Pennsylvania Liquor Control Board ("PCCB"), you would be considered a public officiallpublic employee and an executive - level State employee subject to the rovisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §p 1101 et seq. Based upon the submitted facts that: �ld; you would be retiring from your employment with the PLCB effective November 4, 20 (2) prior to joining the PLCB in 2010, you gave lectures to classes as a visiting professor at the Smeal College of Business at the Pennsylvania State University ( "the Metz er, 16-564 December 2, 2016 Page 3 University ") for which you received payment in the form of honoraria of $1000 per class lectured; (3) once you joined the PLCB, you performed your lecturing activities with the University without remuneration; (4) the University holds several licenses issued b the PLCB, including two hotel liquor licenses and a public venue license; and (5� the University may be a vendor to the Commonwealth, you are advised as follows. Section 1103(d) of the Ethics Act, which only applies while an individual holds a position of public office or public employment, would not app) to restrict you from receiving honoraria for giving lectures to classes as a visiting professor at the University following termination of your employment with the PLCB. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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 writingg and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 57 Pa. Code § T3.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (777 -787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, .bin M. Hittie Chief Counsel