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HomeMy WebLinkAbout18-004 ConfidentialPHONE: 717- 783 -1610 STATE ETHICS COMMISSION FACSIMILE: 717- 787 -0806 TOLL FREE: 1 -800- 932 -0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120 -0400 OPINION OF THE COMMISSION Before: Nicholas A. Colafella, Chair Mark R. Corrigan, Vice Chair Roger Nick Melanie DePalma Monique ftatt Galloway Michael Achwartz Shelley Y. Simms DATE DECIDED: 4110/18 DATE MAILED: 4/24/18 To the Requesters: 11� This Opinion is issued in response to our letter dated February 2, 2018, by which you requested a confidential 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 seg., would impose any prohibitions or restrictions upon a State Legislator serving in the A with regard to authoring and having published a non - fiction book that would assess the B of the C and recommend a D for the C, where: (1) in a private capacity, the State Legislator is a [type of professional] with an extensive background in E, F, G, and H; (2) the proposed book would contain the State Legislator's proposed D for the C and suggestions for potential legislative changes that would aid in improving the C's B; (3 pieces of legislation authored by the State Legislator or other State Legislators wol likely be discussed in the proposed book; and (4) the State Legislator either would receive no uch compensation for his work and would make copies of s book available without cost, or in the alternative, would donate to the C any royalties that he would receive as a result of the publisher selling copies of such book. IL FACTUAL. BASIS FOR DETERMINATION: You have been authorized by State Legislator I to request a confidential advisory from this Commission on his behalf. You have submitted facts which may be fairly summarized as follows. State Legislator I was first elected to the A in [year]. In a private capacity, State Legislator I is a type of professional]. Since [year], State Legislator I has been the J of a firm named [name of firm], which specializes In E, F, and G. State Legislator I has spent approximately [number] years H, and he has served on the Ks of numerous [types of entitles]. In [year], State Legislator I published a book pertaining to the profession of [type of profession]. Confidential Opinion, 18 -004 April 4, Page 2 State Legislator I believes that the C is L and will be M in the [time period] if changes are not made to improve the C's B. State Legislator I proposes to author and have published a non - fiction book that would assess the B of the C and recommend a D for the C. State Legislator I would be identified as the author of the proposed book by his full name and his academic and professional credentials. The proposed book would include a D that State Legislator I developed for the C prior to his election to the A. The proposed book would also contain State Legislator I's suggestions for potential legislative changes that would aid in improving the C's B. Pieces of legislation authored by State Legislator i or other State Legislators would likely be discussed in the proposed book. A portion of the proposed book would include publicly available documents that relate to the C's B. You state that State Legislator I would not include in the proposed book any confidential information received through his holding public office. You further state that State Legislator I would not use legislative resources such as personnel, equipment, supplies, facilities, and the like to write or market the proposed book. Although State Legislator I intends to make copies of the proposed book available without cost, the publisher may want to sell copies of the proposed book on websites, in which case a royalty arrangement between State Legislator I and the publisher may be required. You further state that if such a royalty arrangement would be required, State Legislator I would be willing to donate any royalties that he may receive to the C. You contend that any royalties State Legislator I would receive as a result of the publisher selling the proposed book would be consideration for the value of his services and would not constitute honoraria prohibited b Section 1103(d) of the Ethics Act. You express your view that if such royalties would in fact constitute honoraria, State Legislator I could avoid running afoul of Section 1103(d) of the Ethics Act if he would donate such royalties to the C at or around the same time he would receive such royalties. Based upon the submitted facts, the following questions are presented: (1) Whether the Ethics Act would prohibit State Legislator I from authoring and having published the aforesaid proposed book where State Legislator I would receive no payments /compensation for his work and would make copies of such book available without cost; and (2) In the alternative, whether any royalties that State Legislator I would receive as a result of the publisher selling copies of such boots would be considered honoraria prohibited by Section 1103(d) of the Ethics Act, and if so, whether State Legislator I would avoid running afoul of Section 1103(d) if he would donate such royalties to the C. By letter dated March 19, 2018, you were notified of the date, time and location of the executive 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 tot 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 Confidential Opinion, 18 -004 April Page 3 requester has truthfully disclosed all of the material facts. In his capacity as a State Legislator serving in the A, State Legislator I 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 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 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" fhey introducing, considering, debating, voting, enactin , adopting, or approving legislation), would-be constitutionally controlled and exempt from the purview of the Ethics Act and the Commission. See, Corrigan, Opinion 87 -001. Section 1103(d) of the Ethics Act provides as follows: § 1103. Restricted activities. (d) Honorarium, - -No public official or public employee Confidential Opinion,, 18 -004 April 24, 2018 Page 4 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 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. Confidential Opinion, 01 -001. Section 1103(d) 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, Opinion 09 -002; Fiorello, Order 1363. In apIying the above provisions of the Ethics Act to the submitted facts, you are advised as follows. In response to your first specific question, you are advised that absent some use of authority of office or confidential information received by being a State Legislator 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, State Legislator I would not transgress Section 1103(a) of the Ethics Act by authoring and having published the aforesaid proposed book because the essential elements for a violation of Section 1103(a) would not be established. Similarly, unless there would be some form of payment to State Leggislator I in recognition of the book/proposed book, the elements of a violation of Section 1103(d) of the Ethics Act would not be established. In considering your second specific question, there is clearly a connection /nexus between the proposed book and State Legislator I's public position as a State Legislatorl that is established by the following submitted facts: (1) the subject matter of the proposed book, namely, the B of the C, is a legislative topic /boncem; (2) the proposed book would contain State Legislator 1's roposed D for the C and his suggestions for potential legislative changes that would paid in improving the C's B; and (3) the proposed book would likely discuss pieces of legislation authored by State Legislator I or other State Legislators. Therefore, any payment(s) to State Legislator I in recognition of the book -- including but not limited to roy i ties from sale(s) of the book --would constitute prohibited honoraria pursuant to Section 1103(d) of the Ethics Act. Cf., Fiorello, Order 1363 at 90. Finally, you are advised that State Legislator I would not avo0 running u n ng afoul of Section '1103(d) by donating " Although we have recognized that a State Legislator could, in a published work about his public and private life, provide a brief "backdrop" regarding his public position (Confidential O inion, 14 -007), in the instant matter, there is clearly a connection /nexus between the proposed book and the public position. Confidential Opinion, 18 -004 April Page 5 such pa ment(s) /royyalties to the C. One does not avoid a transgression of Section 1103(d) of the Ethics Act by donating n honorarium to someone or something else. Cf., Richardson, Opinion 93 -006; Crompton, supra. The propriety of the proposed conduct has only been addressed under the Ethics Act. IV. CONCLUSION: As a State Legislator serving in the A, State Legislator I is a public official subject to the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1101 et seq. ( "Ethics Act "). Based upon the submitted facts that: (1) State Legislator I was first elected to the A in ear]; (2) in a private capacity, State Legislator I is a [type of professional]; (3) since [year], tate Legislator I has been the J of a firm named [name of firm], which specializes in E, F, and G; (4) State Legislator I has spent approximately [number] years H, and he has served on the Ks of numerous [types of entitled; (5) in year], State Legislator I published a book pertaining to the profession of [type of pro ession�; (6) State Legislator I believes that the C is L and will be M in the [time period] if changes are not made to improve the C's B; (7) State Legislator I proposes to author and have ublished a non-- fiction book that would assess the B of the C and recommend a D for the C; ($) State Legislator I would be identified as the author of the proposed book by his full name and his academic and professional credentials; (9) the proposed book would include a D that State Legislator I developed for the C prior to his election to the A; (10) the proposed book would also contain State Legislator I's suggestions for potential legislative changes that would aid in improving the C's B; (11) pieces of legislation authored by State Legislator I or other State Legislators would likely be discussed in the proposed book; (12) a portion of the proposed book would include publicly available documents that relate to the C's B; (13) State Legislator I would not include in the proposed book any confidential information received through his holding public office; (14) State Legislator I would not use legislative resources such as ersonnel, equipment, sup lies, facilities, and the like to write or market the proposedpbook; (15) although State legislator I intends to make copies of the proposed bbook available without cost, the publisher may want to sell copies of the proposed book on websites, in which case a royalty arrangement between State Legislator I and the publisher may be required; and (16) if such a royaltyarrangementwould be required, State Legislator ]would be willing to donate any royalties that he may receive to the C, you are advised as follows. Absent some use of authority of office or confidential information received by being a State Legislator 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, State Legislator I would not transgress Section 1103(a) of the Ethics Act by authoring and having published the aforesaid proposed book because the essential elements for a violation of Section 1103(a) would not be established. Similarly, unless there would be some form of payment to State Legislator I in recognition of the book/proposed book, the elements of a violation of Section 1103(d) of the Ethics Act would not be established. There is clearly a connection /nexus between the proposed book and State Legislator I's public position as a State Legislator, and therefore, any payment(s) to State Legislator I in recognition of the book -- including but not limited to royalties from sale(s) of the book - -would constitute prohibited honoraria pursuant to Section 1103(d) of the Ethics Act. State Legislator I would not avoid running afoul of Section 1103(d) by donating such payment(s)lroyalties to the C. 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 Confidential Opinion, 18 -004 Page 6 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, 1 Nic o as A. Colafella Chair