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Home My WebLink About96-503 BracciaDear Mr. Braccia: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 30, 1996 Joseph A. Braccia, CPA Director of Public Markets State Employes' Retirement System 30 North Third Street PO Box 1147 Harrisburg, PA 17108 -1147 96 -503 Re: Conflict, Public Official /Employee, Private Pecuniary Benefit, SERS, National Professional Society, Writing Contest, Acceptance of Cash Award. This responds to your letter of December 22, 1995 and Bruce Feldman's letter of December 12, 1995 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 public :.employee from submitting a report to a writing contest sponsored by the local chapter of a national professional society and from accepting an award of cash. Facts: You are the Director of Public Markets for the State Employes' Retirement System (SERS). As part of your duties with SERS, you produced a report for the Board of Trustees. After obtaining permission from your supervisor, you reworked the report, which was specific to Pennsylvania, to appeal to a national audience. You researched national trends, analyzed new data and rewrote the text so as to appeal to a national audience. The redrafting was done on your personal time with the permission of your agency. The resulting article was eventually published, with minor editorial revisions, in a professional journal. You received no compensation for the published article. You are a member of a local chapter of a national professional organization. The local chapter sponsors an annual writing contest and awards cash prizes to the two articles judged to be of the Braccia, No. 96 -503 January 30, 1996 Page 2 highest quality. The publisher of the professional journal in which the article first appeared agrees to your entry in the contest. Your specific questions are as follows: 1. May you enter the article in the contest assuming the consent of SERS and the publisher of the professional journal; 2. If participation in the contest is acceptable and you are awarded a cash prize, may you retain the prize; and 3. If retention of the cash award is impermissible, may the cash award be declined and paid directly to a charitable organization of your choice. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. ,§§407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 P.S. § §407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As Director of Public Markets for SERS, you are a public employee 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. 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 $raccia,, No. 96 -503 January 30, 1996 Page 3 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. 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 provisions of Section 3(a) of Act 9 of 1989 to the instant matter, there is no prohibition to entering the contest. In addition, you may retain a cash prize, if awarded, for an article that you would submit provided the following conditions are satisfied. First, it is assumed that the initial article was a work product that related to some aspect of agency business as opposed to a work product that involved a topic unrelated to the agency for which the author was motivated for personal financial gain. Second, it is assumed that the requisite permission was obtained to use the original agency article for a rewrite. Third, it is assumed as to the rewritten work product, that all activities, including but not limited to research, analysis and drafting, were done on the employee's own time. In this regard, a public official /public employee may not use Commonwealth facilities, equipment, personnel, or supplies for any private endeavors. See, Friend, Order No. 800. See also, Rakowsk', Order No. 943, where the Commission found that a school superintendent violated Section 3(a) of the Ethics Law as to his usage of school district facilities and equipment for his community activities, educational course work and resume. In Rakowski, even though the school district encouraged its administrators to engage in community activities and seek further education, such matters were found to be personal for which governmental facilities, equipment, and personnel could not be used Thus, all work related to the rewritten article could not be done during Commonwealth working hours, nor could the Commonwealth offices, equipment, personnel, materials or supplies be used for such project. Lastly, it is Braccia, No. 96 -503 January 30, 1996 Page 4 assumed that no confidential information was used in preparation of the article since such would be prohibited by the Ethics Law, 65 P.S. §403(a). As to the third question of whether you may divert the cash award to a charity or benevolent cause, you could do so provided you satisfy the above criteria for receiving the award. However, if the receipt of the cash award would be prohibited because any of the above factors were applicable, you could not under the Ethics Law disclaim such award in favor of some third party, even if a charitable, educational, or benevolent institution. See, Richardson, Opinion No. 93 -006 where the Commission held that State System of Higher Education Administrators could not decline prohibited honoraria in favor of institution endowment funds or system -wide foundations, noting in part the element of control which would exist over the disposition of such funds. 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 Governor's Code of Conduct Conclusion,: As Director of Public Markets for SERS, you are a public employee subject to the provisions of the Ethics Law. As to a SERS report that you rewrote, you may, with agency permission, enter the article in a contest, accept a cash prize, if awarded, or direct such prize to a charitable /benevolent cause only if the conditions noted above are satisfied. 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 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. Braccia„ No. 96 -503 January 30, 1996 Page 5 Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa.Code §13.2(h) . The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717 -787- 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Vincent Do.ko Chief Counsel