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Home My WebLink About93-543 ConfidentialSTATE. ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 6, 1993 93 -543 Re: Conflict, Public Official /Employee, Honorarium, Member, A, Program C. This responds to your letter of March 10, 1993, in which you requested confidential advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a Member of A with regard to accepting compensation in the form of an honorarium for speaking engagements through an independent foreign affairs agency of the United States Government. Facts: As a Member of A, you request an advisory from the State Ethics Commission. Agency B is an independent foreign affairs agency within the executive branch of the United States government. Among its programs is Program C in which the agency selects United States citizens to speak on a variety of issues to audiences overseas. You state that speakers are compensated in several ways. A copy of printed material provided by Agency B describing the program and the terms of compensation has been submitted and is incorporated herein by reference. It is noted that according to the submitted pamphlet, the compensation provided to a person who is not a United States Government employee is "an honorarium of $100 per program day. . . ." (Pamphlet at 8) (Emphasis added). Although necessary travel expenses are also paid, Id., no other form of compensation is mentioned except for the United State Government per diem rate provided to United States Government employees. Nevertheless, you request an advisory as to the applicability of the Ethics Law to the "types" of compensation. Confidential Advice No. 93 -543 April 6, 1993 Page 2 You suggest to the Commission that receipt of any of the "forms" of compensation offered by Agency B are consistent with the Ethics Law. You state that none of the "forms" of compensation paid by Agency B under Program C raise a conflict of interest or the appearance of a conflict of interest since the purpose of the program is to advance the public interest and policy of the Government of the United States of America, and by necessary implication the public interest and policy of the Commonwealth of Pennsylvania. While you acknowledge that "one form" of compensation is, in fact, described as an "honorarium," you state that it was not the intent of the Legislature to prohibit public officials from receiving compensation from other governmental bodies, but rather to prevent private individuals or entities from acquiring undue influence or the appearance of undue influence over public officials by means of fees paid for the service of speaking to a domestic audience. Based upon the above, you request an advisory from the State Ethics Commission. Discussion: As a Member of A, 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. Confidential Advice No. 93 -543 April 6, 1993 Page 3 "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 - 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. "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 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 Confidential Advice No. 93 -543 April 6, 1993 Page 4 engagement is an honorarium which would be prohibited by Section 3(d) of the Ethics Law. See, Baker, Opinion 91 -004. In this case, there is no basis in the submitted facts to conclude that your participation in Program C would be other than in your public capacity. Furthermore, there is no basis for concluding that what the Program itself clearly considers to be an "honorarium" and labels as such is anything but an honorarium. In this regard, it is additionally noted that such an honorarium is the only form of compensation which would be available to you should you participate in Program C because you would not be participating as a United States Government employee. As for your viewpoint that the Legislature did not intend to prohibit public officials from receiving such compensation from other governmental bodies, there is no indication in the legislative history of Section 3(d) which would support such a position. The language of Section 3(d) is clear and no exceptions are delineated therein. In the instant matter, it is clear under the facts which you have submitted that were you to participate as a speaker in Program C, such participation would be in your capacity as a Member of A, as opposed to any private professional capacity, and would therefore be such that the fee for the speaking engagement would be an honorarium prohibited by Section 3(d) of the Ethics Law. 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 Code D. Conclusion: As a Member of A, you are a public official subject to the provisions of the Ethics Law. Under the facts which you have submitted, should you participate in Program C, such participation would be in your capacity as a public official and Section 3(d) of the Ethics Law would prohibit the acceptance of a fee for same as -an honorarium. 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. This letter is a public record and will be made available as Confidential Advice No. 93 -543 April 6, 1993 Page 5 such. 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. ncerely, „,k, 04. Vincent J. Dopko Chief Counsel