The URL can be used to link to this page

Home My WebLink About93-540 HuebnerSTATE ETHICS COMMISSION 309 FINANCE BUILDING PO. BOX 114'70 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 5, 1993 93 -540 Richard S. Huebner 7334 West Applachian Trail Linglestown, PA 17112 Re: Conflict, Public Official /Employee, Municipal Authority Member, Honorarium, Professor, Water Resources and Environmental Engineering. Dear Mr. Huebner: This responds to your letter of March 9, 1993, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a municipal authority member who is also a professor in the field of water resources and environmental engineering, with regard to accepting honoraria for professionally related speaking engagements. Facts: As a Member of the West Hanover Township Water and Sewer Authority ( "Authority ") , you seek an advisory from the State Ethics Commission. At a recent workshop for new authority members, you became aware that pursuant to the Ethics Law, accepting honoraria is prohibited. You are a faculty member at Penn State University and, on occasion, have been asked to make a presentation for which an honorarium is awarded. You teach in the field of water resources and environmental engineering. You state that the presentations are related to your profession. You also state that it is clear that one of the reasons that you were selected to sit on the Authority was because of your expertise in this area. You are concerned that if you accept an honorarium in conjunction with your academic duties that you will be violating the Ethics Law as a public official serving on the Authority. You state that this situation has not occurred since you joined the Authority, but may occur in the future. You note that you are a registered engineer in the state of California and do not wish to jeopardize your professional standing by violating the Ethics Law. Richard S. Huebner April 5, 1993 Page 2 Based upon the above, you request an advisory from the State Ethics Commission. Discussion: As a Member of the West Hanover Township Water and Sewer Authority, you are a public official as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. Section 3(d) of the Ethics Law provides: Section 3. Restricted activities (d)(1) No public official or public employee shall accept an honorarium. (2) This subsection shall not be applied retroactively. 65 P.S. 5403(d)., The following terms are defined in the Ethics Law as follows: Section 2. 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. "Conflict" or "conflict of interest" 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. Richard S. Huebner April 5, 1993 Page 3 "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 "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. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgement of the public official /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. In applying the above provisions of Section 3(d) of the Ethics Law, which clearly would be the only section implicated in this case, the Commission has differentiated as to whether the speaking engagement is an outside professional activity which would not be restricted by Section 3(d) of the Ethics Law or whether the fee for the speaking engagement is an honorarium which would be prohibited by Section 3(d) of the Ethics Law. See, Baker, Opinion 91 -004. In Pancoe, Opinion 89 -011, the Commission determined that a public official /public employee was not prohibited from outside business activities provided there was not a use of the authority of office for the advancement of the public official's/public employee's own personal financial gain. As to honoraria, the issue is whether the speaking engagement is a professional business activity or a speaking engagement in the capacity as a public official. In resolving such questions, the Commission has applied certain criteria to submitted facts and circumstances to determine whether the payment for a speaking engagement, published work, appearance or presentation is a prohibited honorarium or allowable as non - public occupational or professional. The criteria applied include but are not limited to the following: the private occupation of the public official /public employee, the expertise of Richard S. Huebner April 5, 1993 Page 4 the public official /public employee in the area, the history of activity in the occupation prior to public service, the purpose for the invitation, the capacity in which the public official /public employee is invited, the subject of the speech, work or presentation, the group spoken to and the composition as to members or non - members of the group, the purpose for gathering the group, the amount of the fee relative to the services performed, the source of the invitation, the event at which the speech is given, the subject matter of the speech or published work as compared to the normal subject matter dealt with by the occupational/ professional group and any other relevant factors. In the instant matter, it is clear under the facts which you have submitted that your speaking engagements in your capacity as a professor in the field of water resources and environmental engineering as opposed to your public capacity would be non - public occupational and professional in nature and hence payments of same would not be honoraria prohibited under the Ethics Law. In that you have not posed any specific speaking engagements for review, this advisory is necessarily limited to the above general principle. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the Municipality Authorities Act. Conclusion: As a Member of the West Hanover Township Water and Sewer Authority, you are a public official subject to the provisions of the Ethics Law. As a Municipal Authority Member who is a professor in the field of water resources and environmental engineering, you are not prohibited by Section 3(d) of the Ethics Law from receiving a fee for speaking engagements in your professional, as opposed to public, capacity. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), this 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, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. such. This letter is a public record and will be made available as Richard S. Huebner April 5, 1993 Page 5 Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code §2.12. cerely, Vincent aJ Dopko Chief Counsel