HomeMy WebLinkAbout20-001 ConfidentialPHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806
TOLL. FIRM 1-800-932-0936 FINANCE BUILDING WEBSITE: wwmethics.pajoy
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
Michael A. Schwartz
Shelley Y. Simms
0 1 0 0 1
IPJAI-MLYIMIMMMIVAE, I
To the Requester:
This responds to your letter of August 12, 2020, by which you re ,nested a
confidential advisory opinion from the State Ethics Commission ("'Commission .
ISSUE:
Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. §
1101 et seq., would impose prohibitions or restrictions upon [name and title] (the "Public
OfficiaT),w`ith regard to having a non-fiction book published regarding his personal life
and career, where: (1) the Public Official would receive payment(s)[compen,sation for
having the book published, including an advance and, potential royalties based on book
sales; (2 portions of the book would encompass the Public Official's experiences as a
public opicial; (3) the book would include chapters discussing the Public Official's service
in public office including issues that the Public Official faces now; (4) the book would relate
public policy positions the Public Official held during his career in the private sector to
present controversies, in which he has been involved; and (5) the book would include
decisions the Public Official has made while in office.
III. FACTUAL BASIS FOR DETERMINATION:
On behalf of the Public Official, you request a confidential advisory from this
Commission based upon submitted facts, the material portion of which may be fairly
summarized as follows.
The Public Official has entered into a contract to have a book published about his
life and lessons learned from childhood to the present, including during a [number of years
spanning decades] career as a [type of professional]
] in A and B issues and during
number of years constituting less than a decade] in public office. You state that the
ublic Official's life and career have been spent trying to [type of effort]. You state that
the Public Official has been known for decades for [type of work], and that on several
occasions prior to taking office, he has spoken, been interviewed by media, or taught
about A and B issues. Currently, the Public Official is frequently referred to as a C in the
Confidential O inion, 20-001
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D.
You state that the Public Official secured the book contract in an arms -length
marketplace transaction with a certain commercial publisher that is national and
international in scope, for commercially reasonable terms including an advance and
potential royalties based on book sales, with publishing expected to occur in [year].
The book was not/would not be prepared using any official staff or resources.
Additionally, the book would not contain any confidential information received through the
Public Official's holding public office.
You state that the book would include as its primary themes [themes], and A and
B issues. However, portions of the book would encompass the Public Official's
experiences as a public official. The book would include chapters discussing the Public
Official's service in public office including issues that the Public Official faces now,
connecting such issues with his experiences prior to public service and continuing
discussion of the issues that have animated his life and career. The book would relate
public policy positions the Public Official held during his career in the private sector to
present controversies in which he has been involved. The book would include decisions
the Public Official has made while in office.
Based upon the above facts, the question presented is whether the Ethics Act
would impose prohibitions or restrictions upon the Public Official with regard to having the
proposed non-fiction book regarding his personal life and career published. In particular,
you seek confirmation that no forbidden honorarium would result.
By letter dated August 24, 2020, you were notified of the date, time and location of
the executive meeting at which your request would be considered.
You submitted a letter brief dated September 16, 2020, and commentary at this
Commission's executive meeting held September 23, 2020. You assert that the instant
matter resembles this Commission's adjudication in Sims, Order No. 1769. You state that
the Public Official's proposed book would not be targeted solely to the Public Official's
jurisdiction, and "the overwhelming number" of sales would be elsewhere. Finally, you
state that this Commission's opinion is sought to ensure compliance with the Ethics Act.
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 to 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 requester has truthfully disclosed all of the material facts.
As [title], the Public Official is a "public official" as the Ethics Act defines that term,
65 Pa.C.S. § 1102, and therefore he is subject to the restrictions of the Ethics Act.
Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is
prohibited from engaging in conduct that constitutes a conflict of interest:
§ 1103. Restricted activities
(a) Conflict of interest. --No public official or
public employee shall engage in conduct that constitutes a
conflict of interest.
Confidential Opinion, 20-001
October 1 ,0
Page 3
65 Pa.C.S. § 1103(a).
The term "conflict" or "conflict of interest" is 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.
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, pursuant to Section 1103(a) of the Ethics Act,
the Public Official would be prohibited from using the authority, of his public office or
confidential information received by holding such public position for the private pecuniary
benefit of the Public Official himself, any member of his immediate family, or a business
with which he or a member of his immediate family is associated.
Section 1103(d) of the Ethics Act prohibits a public official/public employee from
accepting an honorarium:
§ 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" 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.
The question of whether a given payment is an honorarium prohibited by Section
1103(d) is determined by an application of the statutory definition set forth in the Ethics
Act, not by the mere label that may have been attached to the payment. Fiorello, Order
No. 1363; Confidential Opinion, 14-007; Confidential Opinion, 01-001.
Confidential Opinion, 20-001
0_C_t0_I5e_r__f4, 2U20
Page 4
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 professionaF or occupational cappacity and are not related to the public
position. Fiorello, supra; Confidential Opinion, 14-007; Confidential Opinion, 01-001.
In Baker, Opinion 91-004, we set forth criteria for determining whether the
exclusion Rn He statutory definition of the term "honorarium" applies in any given instance,
which criteria include the following: the private occupation of the public official/public
employee; the expertise of 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 officiallpublic 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 appplying these criteria in Baker, we held that a Senator with a Bachelor's degree
in Political Science as well as a aiV�st-e-Ts degree and Ph.D. in Government, who was an
assistant professor and faculty associate, taught political science at Temple University,
authored/co-authored numerous publications involving political science and government,
and had previously served as a panelist or speaker at several professional and civic
meetings and conferences, would not be prohibited from accepting a $500 fee for
speaking as an academic expert to marketing representatives on the subject of legislative
priorities for local government at a seminar where the marketing representatives were
meeting with academics, state and local officials, and private sector executives. We
determined that under the factual circumstances, the payment would be nonpublic
occupational or professional in nature and not an honorarium. Baker, supra.
In Sims, Order No. 1769, issued earlier this year, we applied the Baker criteria in
a case invofving payments received by State Representative Brian Sims =Sims") for
speaking about LGBT issues and legislation. Sims private occupation was that of a paid
professional speaker/lecturer on LGBT issues. Sims' expertise in civil
rights/diversity/LGBT issues was founded on his own story, educational background,
knowledge, experience as an attorney, experience as a leader of LGBT organizations,
and years of experience as an LGBT activist and paid speaker on LGBT issues prior to
his election to public office. Sims' history of activity in the occupation prior to public
service was extensive, and the purpose for Sims' invitations to speak was to explain his
own experiences and the lessons that he learned in a way that others could learn some
of those lessons. The capacity in which Sims was invited to speak was as a gay,
prominent civil rights activist. Sims' status as a public official was part of his title but was
not the reason he was invited to speak. The subject of Sims' presentations included his
own experiences and his extensive knowledge regarding LGBT issues. The status of
LGBT-related legislation was only a small part of a much larger speech, and LGBT-related
legislation had been a significant focus of Sims' work prior to taking office. The General
Assembly was a "backdrop" against which Sims described his interactions with Members
of the General Assembly. Cf., Confidential Opinion, 14-007. The groups spoken to were
mainly college students and members of academia. Occasionally Sims spoke to a
business group. The purpose for gathering the group was to educate the listeners to
LGBT issues. The amounts of the fees relative to the services performed did not appear
to have been out of the ordinary. The source of Sims' invitations were people involved in
arranging speakers for colleges and business groups. The events at which the speeches
were given were LGBT-related events. The subject matter of the speeches was typical
for college/business groups interested in LGBT issues, especially during certain times of
the year when LGBT awareness was emphasized. None of the appearances which were
Confidential O innion, 20-001
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Page 5
the subject of the Sims matter occurred within the physical boundaries of Sims' legislative
district, and only afeew occurred in Pennsylvania. Under the unique facts of the Sims
case, Sims' occupation prior to taking office was providing paid speeches on L=
issues, which included references to related legislation. We held that Sims did not violate
Section 1103(d) of the Ethics Act, 65 Pa.C.S. § 1103(d), as to the allegation that he
solicited and/or accepted honoraria in association with appearances/presentational
speeches, as the payments he received for his appearances/presentations/speeches
were consideration for the value of such services which were nonpublic occupational or
Rrofessional in nature, and therefore were excluded from the Ethics Act's definition of
`honorarium." We cautioned that had Sims' speeches been more focused on legislation
or his legislative duties, the outcome of that case would have been different.
In Confidential Opinion, 14-007, we held that --subject to the condition that the
transaction in question in t at Opinion would be an "arms -length" marketplace transaction
for commercially reasonable terms --the compensation a State Legislator would receive
from a publisher for authoring a book about his public and private life would not constitute
an honorarium where the relevant facts included, inter alia, that: (1) portion(s) of the State
Legislator's proposed book would relate to his experiences as a State Legislator but
would not include any confidential information received through his holding public office;
and (2) the portions of the book relating to the State Legislator's experiences as a State
Legislator would be only a fraction of the overall work encompassing both his public and
private life, and in those portions, the General Assembly would be more like a `backdrop"
against which he would describe his interactions with Members of the General Assembly
and staff on a personal and professional level than the story itself.
In contrast, in Confidential Opinion, 18-004, we found a connection/nexus between
a State Legislator's proposed book and the State Legislator's public position as a State
Legislator where: (1) the subject matter of the proposed book was a legislative
to
(2) the proposed book would contain the State Legislator's proposal(s) and
his suggestions for potential legislative changes that would aid in improving the subject
topic/concern; and (3) the proposed book would likely discuss pieces of legislation
authored by the State Legislator or other State Legislators. We held that any payment(s)
to the State Legislator 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.
In applying the above precedents to the submitted facts in the instant matter, you
are advised that to avoid transgressing Section 1103(d) of the Ethics Act, 65 Pa.C.S. §
1103(d), reference(s) bya public official/public employee to his public position in the
context of a paid speaking engagementlpresentation, appearance, or published work
must be limited to a mere 'backdrop" --that is minimal and incidental and not a subJ'ect
matter of the paid speaking engagement/presentation, appearance, or publis'Tied work.
A mere backdro provides a setting without providing subject matter content. For
example, merely identitpjiing the public office or anecdotally describing one's relationships
with other public officials without delving into the activities of the public office would
constitute a mere backdrop.
In the instant matter, even if the Public Official's proposed book would be
"primarily" about the Public Official's non-public life, as you suggest, the following facts
establish that the planned references in the book to the Public Official's public office would
not be limited to a "mere backdrop," but rather, would constitute subJJ'ect matter(s) of the
Fook: (1) portions of the book would encompass the Public Officials ex enences as a
public official; (2) the book would include chapters discussing the Public Official's service
in public office including issues that the Public Official faces now; (3) the book would relate
public policy positions the Public Official held during his career in the private sector to
present controversies in which he has been involved; and (4) the book would include
decisions the Public Official has made while in office.
Confidential Opinion, 20-001
cto er 4, 2020
Page 6
You are advised that under the submitted facts, the Ethics Act generally would not
prohibit the Public Official from having a book published about his private life, or ---from a
private perspective —A and B issues, his private [type of work], and [themes]. However,
pa ment(s)/compensation relating to the book would constitute prohibited honoraria if
references to the Public Official's public office would go beyond a mere "backdrop" to
such matters as it appears these subjects currently do based on your submissions. For
example, payment(s)lcompensation relating to the book would constitute prohibited
honoraria if the Public Official would include as a subject matter of the book the activities
of his public office, such as decisions the Public Official has made as a public official while
in office.
The propriety of the proposed conduct has only been addressed under the Ethics
Act; the applicability of any other statute, code, ordinance, regulation or other code of
conduct otther than the Ethics Act has not been considered in that they do not involve an
interpretation of the Ethics Act.
IV. CONCLUSION.
Based upon the submitted facts that: q) [name and title] (the "Public Official") has
entered into a contract to have a book published about his life and lessons learned from
childhood to the present, including during a [number of years spanning decades] career
as a [type of professional] in A and B issues and during [number of years constituting less
than a decade] in public office; (2) the Public Officials life and career have been spent
tryin to [type of effort]; (3) the ublic Official has been known for decades for [type of
work; (4 on several occasions prior to taking office, this individual has spoken, been
interviewed by media, or taught about A and B issues; (5) currently, the Public Official is
frequently referred to as a C in the D; (6) the Public Official secured the book contract in
an arms -length marketplace transaction with a certain commercial publisher that is
national and international in scope, for commercially reasonable terms including an
advance and potential royalties based on book sales, with publishing expected to occur
in [year]; (7) the book was not/would not be prepared using any official staff or resources;
((8) the book would not contain any confidential information received through the Public
Official's holding public office; (9) the book would include as its primary themes [themes],
and A and B issues; J10) port►ons of the book would encompass the Public Official's
experiences as a pubic official; (11) the book would include chapters discussing the
Public Official's service in public office including issues that the Public Official faces now,
connecting such issues with his experiences pnor to public service and continuing
discussion of the issues that have animated the Public Official's life and career; (12) the
book would relate public policy positions the Public Official held during his career in the
private sector to present controversies in which he has been involved; (13) the book would
include decisions the Public Official has made while in office; and (14) the book would not
be targeted solely at the Public Official's jurisdiction, you are advised as follows.
As [title], the Public Official is a "public official" as the Public Official and Employee
Ethics Act ("Ethics Act") defines that term, 65 Pa.C.S. § 1102, and therefore he is subject
to the restrictions of the Ethics Act.
Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict"
or "conflict of interest," 65 Pa.C.S. § 1102, pursuant to Section 1103(a) of the Ethics Act,
65 Pa.C.S. § 1103(a), the Public Official would be prohibited from using the authority of
his public office or confidential information received by holding such public position for the
frivate pecuniary benefit of the Public Official himself, any member of his immediate
amily, or a business with which he or a member of his immediate family is associated.
Section 1103(d) of the Ethics Act, 65 Pa.C.S. § 1103(d), prohibits a public
official/public employee from accepting an "honorarium" as the t ics Act defines that
term, 65 Pa.C.S. § 1102. To avoid transgressing Section 1103(d) of the Ethics Act,
Confidential O inion, 20-001
cto er 4, 2020
Page 7
references by a public official/public employee to his public position in the context of a
paid speaking engagement/presentation, appearance, or published work must be limited
to a mere "backdrop' —that is minimal and incidental and not a subject matter of the paid
speaking engagement/presentation, appearance, or published work.
Under the submitted facts, the Ethics Act generally would not prohibit the Public
Official from having a book published about his private life, or —from a private
perspective —A and B issues, his private [type of work], and [themes]. However,
pa ment(s)Icompensation relating to the book would constitute prohibited honoraria if
references to the Public Official's public office would go beyond a mere "backdrop " to
such matters as it appears these subjects currently do based on your submissions.For
example, payment(s)/compensation relating to the book would constitute prohibited
honoraria if the Public Official would include as a subject matter of the book the activities
of his public office, such as decisions the Public Official has made as a public official while
in office.
Act. The propriety of the proposed conduct has only been addressed under the Ethics
Pursuant to Section 1107(10) of the Ethics Act, 65 Pa.C.S. § 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.
Aic
he CommissionOas . Colafella
Chair