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HomeMy WebLinkAbout17-005 KurishSTATE ETHICS COMMISSION 309 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Nicholas A. Colafella, Chair Mark R. Corrigan, Vice Chair Roger Nick Marla Feel e Melanie DeLma DATE DECIDED: 61$117 DATE MAILED: 6121117 17 -005 To the Requesters: C.J. Hafner, 11, Esquire Chief Counsel Sarah N. Kurish, Esquire Democrat Legal Staff Senate of Pennsylvania Dear Mr. Hafner and Ms. Kurish: This Opinion is issued in response to your letter dated March 3, 2017, by which you requested an advisory opinion from the Pennsylvania State Ethics Commission ("Commission"). ). 1. ISSUE: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et sew , would impose any prohibitions or restrictions upon a Penns Ivania State Senator with regard to participating in a proposed arrangement where: (1a non - profit non -stock 501(c)(3) organization located in the Senator's District would auction off a tour of the State Capitol and the Capitol Complex accompanied by the Senator; (2) the winning bidder would pay the non - profit directly; (3) neither the Senator nor his staff would be involved in the bidding or payment process, and (4) neither the Senator, nor any member of his immediate family, nor a business with which either he or a member of his immediate family is associated does business with the non - profit. 11. FACTUAL BASIS FOR DETERMINATION: You have been authorized by Pennsylvania State Senator Larry Farnese (also referred to herein as "Senator Farnese" or "the Senator ") to request an advisory opinion from this Commission on his behalf. You have submitted facts which may be fairly summarized as follows. Senator Farnese is a Member of the Pennsylvania Senate who represents the First (1St) Senate District. Senator Farnese received an invitation from a non- profit non -stock 501(c)(3) organization ( "the Non - Profit ") located in his Senate District to participate in the P.O. BOX 1 1470, HARRISBURG, PA 17108-1470 • 717-783-1610 . 1-800-932-0936 • www.ethics.state.pa.us Hafner /Kurish, 17 -005 June 21, 2QT7 Page 2 following proposed arrangement ( "the Proposed Arrangement ") Under the Proposed Arrangement, the Non - Profit would auction off a tour of the State Capitol and the Capitol Complex accompanied by the Senator. The winning bidder would pay the Non - Profit directly, and neither the Senator nor his staff would be involved in the bidding or payment process. You state that neither the Senator, nor any member of his immediate family, nor a business with which either he or a member of his immediate family is associated does business with the Non - Profit. You note that the Non - Profit's officers and directors are volunteers. The Non - Profit has been characterized as a civic group. Per the Non- Profit's website, the purpose of the Non - Profit is to improve the quality of life for residents of a particular geographic area within the First Senate District. You contend that the Proposed Arrangement would not run afoul of this Commission's decision in Crompton, Opinion 09 -002 (involving prohibited honoraria), as Senator Farnese would noug ng a speech in his public capacity and the auction bids placed with the Non - Profit would not be identified as donations made in Senator Farnese's name. You contend that the Proposed Arrangement is distinguishable from the scenario addressed in this Commission's decision in. Witt, Opinion 'f5 -001 (involving prohibited honoraria), based upon your assertions: (1) that tt 6re is no analogous display or active role using Senator Farnese's public capacity; and 2) that Senator Farnese would have no role, input, or control in the advertisement or solici ation of bids at the auction. Regarding the first of these assertions, you note that Senator Farnese would be accompanying a traditional tour of the Capitol Building, likely presented by the Capitol Tour Guide Office. Capitol tours are available to members of the public at no charge. Senator Farnese would not be providing any insight, information or access in his capacity as a public official that is relevant to a Capitol tour. Regarding the second of these assertions, you state that the Non - Profit would organize and run the auction and would be the exclusive beneficiary of the funds raised during the auction. Based upon the submitted facts, you request an advisory opinion as to whether the Ethics Act would impose any prohibitions or restrictions upon Senator Farnese regarding participating in the Proposed Arrangement. At your request, our consideration of your advisory request was continued until our June 8, 2017, public meeting. By letter dated May 11, 2017, you were notified of the date, time and location of the aforesaid public meeting at which your request would be considered. On May 8, 2017, this Commission received an Amicus Curiae Brief ( "Amicus Brief'), filed by legislative Counsel, presenting the perspective of the Republican and Democratic Caucuses of the Pennsylvania House of Representatives and the Republican Caucus of the Senate. The Amicus Brief raises the following arguments: (1) that the conduct at issue does not constitute either a conflict of interest or a prohibited honorarium, but rather, is merely a method by which a public official can maintain contacts with the community and engage in laudable public service; (2) that Senator Farnese would not have a conflict of interest with regard to the Proposed Arrangement because there is no indication of any private pecuniary benefit to the Senator, his immediate family, or a business with which either the Senator or his family members are associated; (3) that the Non- Profit is not a business with which the Senator or his immediate family members are associated; (4) that in order for a payment to be considered an "honorarium," it must be made in recognition of some "expressive activity" by the public official or public employee; (5) that in this instance, Hafner /Kurish, 17 -005 June 21, 20T7 Page 3 there would be no expressive activity; (6) that driving to and from the Senator's office at the Capitol, scheduling a Capitol tour for a constituent, accompanying a constituent on a walk through the Capitol, and having lunch with a constituent are not expressive conduct; (7) that an unwarranted expansion of the definition of "honorarium" beyond actions including the "requisite expressive element" would be taking the definition of "honorarium" beyond what it is intended to capture; and (8) that any expressive activity which would fall within the protection of the Pennsylvania Constitution's Speech and Debate Clause is beyond consideration by the Commission. At the public meeting on June 8, 2017, Mr. Hafner appeared for the purpose of answering any questions of the Commission. Additionally, Mr. Hafner incorporated by reference the Amicus Brief as part of the instant advisory request. Ill. 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 tot a 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. As a Member of the Pennsylvania Senate, Senator Farnese is a public official 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" and the related term "de minimis economic impact" 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. "De minimis economic impact." An economic consequence which has an insignificant effect. 65 Pa.C.S. § 1102. Section 1103(4) of the Ethics Act is an absolute prohibition against accepting honoraria. The statutory definition of "honorarium" generally includes payments that are made in recognition of speaking engagementslpresentations, appearances, and published ments works, but excludes such pay if: (1) they are legitimately intended as consideration Hafner /Kurish, 17 -005 June 21, Page 4 for the value of such services; and (2) they are undertaken in the public official's/public employee's private professions or occupational capacity and are not related to the public position. Confidential Opinion 01 -001. Section 1103(4) of the Ethics Act only applies if there is a nexus tote government work or if there is a payment that is not actual consideration for the value of the services. See, Crompton, supra; Fiorello, Order 1363. A monetary payment would not fall within the exception the definition of for "tokens" of a de minimis economic impact. Crompton, supra. In the instant matter, Senator Farnese's presence as part of the auctioned tour of the State Capitol and Capitol Complex would not be an "appearance" undertaken in his public capacity and related to his public position. We additionally note that the auction bids would not be identified as donations made or to be made in the Senator's name. Under the submitted facts, the necessary conclusion is that the winning bid would not constitute a prohibited honorarium, and the Ethics Act would not prohibit Senator Farnese from participating in the Proposed Arrangement. Having so concluded, we need not address the remaining arguments raised in this matter. However, we parenthetically note our agreement that any activity which would fall within the protection of the Pennsylvania Constitution's Speech and Debate Clause would be beyond consideration by this Commission. PA. CONST. art. II, § 15. Such constitutional protection would encompass, for example, introductions of groups on the floor of the Senate during session. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. IV. CONCLUSION: Asa Member of the Pennsylvania Senate representing the First (1st) Senate District, State Senator Larry Farnese (also referred to herein as °Senator Farnese" or "the Senator" is a public official subject to the Public Official and Employee Ethics Act, 65 Pa.C.S. § 110 et sec . ( "Ethics Act "). Based upon the submitted facts that: (1) Senator Farnese received an invitation from a non- profit non -stock 501(c)(3) organization ( "the Non- Profit ") located in his Senate District to participate in a proposed arrangement ( "the Proposed Arrangement ") where the Non - Profit would auction off a tour of the State Capitol and the Capitol Complex accompanied by the Senator, the winning bidder would pay the Non - Profit directly, and neither the Senator nor his staff would be involved in the bidding or payment process (2) neither the Senator, nor any member of his immediate family, nor a business with which either he or a member of his immediate family is associated does business with the Non - Profit; (3) the Non - Profit's officers and directors are volunteers; (4) the Non - Profit has been characterized as a civic group; (5) per the Non - Profit's website, the purpose of the Non - Profit is to improve the quality of l5L for residents of a particular geographic area within the First Senate District; (6) Senator Farnese would not be giving a speech in his public capacity, and the auction bids placed with the Non - Profit would not be identified as donations made in Senator Farnese's name; (7) Senator Farnese would be accompanying a traditional tour of the Capitol Building, likely presented by the Capitol Tour Guide Office; (8) Capitol tours are available to members of the public at no charge; (9) Senator Farnese would not be providing an insight, information or access in his capacity as a public official that is relevant to a Capitol tour, (10) Senator Farnese would have no role, input, or control in the advertisement or solicitation of bids at the auction; and 11) the Non - Profit would organize and run the auction and would be the exclusive beneficiary of the funds raised during the auction, you are advised as follows. Senator Farnese's presence as part of the auctioned tour of the State Capitol and Capitol Complex would not be an "appearance" undertaken in his public capacity. and related to his public position, and the winning bid would not constitute a prohibited honorarium. The Ethics Act would not prohibit Senator Farnese from participating in the Hafner /Kurish, 17 -005 June 21, 2017 Page 5 Proposed Arrangement. Act. The propriety of the proposed conduct has only been addressed under the Ethics 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, iA Ni al. "Colafella Chair